Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant , born in DATE , is a journalist by profession . At the relevant time he was employed by ORG , a national DATE newspaper , working as a correspondent in his hometown of GPE .

In the NORP education system , after the seventh or eighth grade , when pupils complete their primary education , they can continue either in an ordinary or in a specialised secondary school . The ordinary secondary ORG curriculum does not usually involve the intensive teaching of a special subject such as mathematics , foreign languages or engineering . Enrolment in them is on the basis of documents only and does not typically present a problem . The curriculum of the specialised secondary schools does include the teaching of such subjects , and pupils are admitted to them exclusively on the basis of competitive examinations , which take place in DATE ( DATE in GPE starts on DATE ) . Under regulations issued by ORG and ORG , pupils with certain medical conditions can be admitted to specialised secondary schools without an examination , as an exceptional measure .

On DATE the head of the GPE education inspectorate , a territorial division of ORG and ORG , appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs . The commission ’s members were CARDINAL employees of the inspectorate , PERSON , PERSON , Mr PERSON and Mr G.D. , and a paediatrician , PERSON

On DATE CARDINAL parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to ORG and ORG . They said that CARDINAL and fiftyseven children had been admitted to specialised secondary schools in GPE on the basis of a medical condition and not following a competitive examination . Most of those were apparently the children of medical doctors , paramedical staff and teachers . The parents complained that whereas they were paying MONEY for private preparatory lessons , certain pupils had been bragging that they would be admitted to ORG in GPE in exchange for paying MONEY ( ORG ) ; indeed , DATE this had become a fact . They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses . They said that they were not blaming the admissions commission , which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems . They insisted that the ORG should set up a special commission to investigate . A number of parents subsequently staged DATE public protests in front of the building of the GPE education inspectorate .

Following this complaint , on DATE the Minister of ORG and ORG appointed CARDINAL officials of ORG to inspect the work of the admissions commission . Having done so CARDINAL , the CARDINAL officials produced a fivepage report on DATE . The report , which was not made public , found that the commission had committed a number of violations of the school admissions regulations , such as admitting pupils who did not have the requisite medical conditions , making findings on the basis of invalid medical documents and poorly documenting its activities . It also said that there were indications that PERSON had been forging documents . The report ’s proposals included “ imposing disciplinary punishments on the commission ’s members , commensurate with the violations found and in line with the FAC ” . On DATE the Minister imposed on PERSON , PERSON , Mr PERSON and Mr PERSON the disciplinary punishment of a “ warning of dismissal ” , citing a number of violations and omissions in the school admissions procedures .

NORP Some time after that the GPE regional prosecutor ’s office opened an inquiry concerning PERSON , PERSON , Mr PERSON and Mr G.D. On DATE it instituted a formal investigation against “ the implicated officials of the education inspectorate ” on suspicion of bribetaking . In the course of this investigation the authorities interviewed the CARDINAL officials , some parents who had complained to ORG and ORG and parents alleged to have given bribes to have their children admitted to “ specialised ” schools . In DATE the prosecutor ’s office decided to discontinue the investigation without bringing charges . It said that while the officials had indeed breached their duty and had been given a disciplinary punishment as a result , there was no evidence that they had done so as a result of bribetaking .

NORP The applicant learned about the story and decided to cover it in an article , which appeared on pages CARDINAL and CARDINAL of the CARDINAL DATE issue of ORG under the headline “ Bribes scandal in GPE secondary schools ” . It bore the subheadline “ [ ORG and ORG ] sacks CARDINAL experts for taking money from sick children ” and the applicant ’s byline , and read , in so far as relevant , as follows :

“ CARDINAL employees of the GPE inspectorate will be punished because they took bribes in relation to the admission of sick children to elite secondary schools , ORG has learned . The ORG Minister [ D.D. ] will decide their fate DATE . [ Mr GPE ] , [ Mr G.D. ] , [ PERSON ] and [ Ms A.M. ] were hired to compile a list of pupils with congenital or acquired diseases who will continue their education in elite secondary schools . An investigation by inspectors from PERSON which took place DATE found that the CARDINAL officials , together with [ Dr PERSON ] , placed CARDINAL people in secondary schools and vocational secondary schools on the basis of forged medical certificates .

Under [ Ministry ] regulations , children with more serious illnesses should be placed higher on the list .

However , the inspection showed that these places had been taken by children in whose medical records non - existent complications had been deliberately inserted . The documents were provided by [ Dr N.P. ] and the commission did not check their accuracy .

The affair was exposed after angry parents of children whose applications had been rejected sent a letter to the [ ORG and ORG ] . The commission of representatives from ORG ministries proposes that the CARDINAL experts be sacked as a disciplinary measure and that [ Dr PERSON ] be banned from practising medicine .

Those concerned have declined to comment to the media and [ Dr N.P. ] has been unavailable for DATE . ”

In an additional article published on DATE under the headline “ NORP MP promises to hush up false medical records scandal in GPE ” , the applicant again reported on the story , quoting comments made by PERSON and mentioning that the Minister of Education and ORG had been supposed to decide DATE whether to impose disciplinary punishments on PERSON , PERSON , Mr PERSON and Mr G.D.

On DATE PERSON , PERSON , Mr PERSON and Mr PERSON lodged a criminal complaint against the applicant and ORG ’s editorinchief with ORG ( GPE районен съд ) . They alleged that by respectively writing and publishing DATE article the applicant had disseminated , and the editor had allowed to be disseminated , injurious statements of fact about them and had imputed an offence to them . In their view , by so doing the applicant and the editor had committed libel , contrary to ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . They sought compensation in the amount of BGN CARDINAL .

At some point during the proceedings the complainants dropped the charges against ORG ’s editorinchief .

ORG held hearings on DATE and DATE . The judge examining the case was also in charge of another case which the CARDINAL complainants had brought against another journalist in relation to an article covering the same events . After convicting the other journalist on CARDINAL DATE , the judge withdrew from the case , citing negative comments made by the applicant about her judgment in the other case . On DATE all the judges of ORG stated that they did not wish to take part in the examination of the case , citing public protests by journalists and the airing of allegations that they were all biased against the applicant . Accordingly , on DATE ORG ordered that the case be transferred to ORG ( Поморийски районен съд ) .

The trial before ORG took place on DATE and DATE and on DATE and DATE . The court heard evidence from the applicant , the complainants and a number of witnesses called by both parties , including the supervisor of the CARDINAL complainants and the deputy regional governor of GPE .

In a judgment of DATE ORG found the applicant guilty of having , in the printed press , disseminated injurious statements of fact about PERSON , PERSON , Mr PERSON and Mr PERSON , officials carrying out their duties , contrary to LAW ) and ( CARDINAL ) and CARDINAL taken in conjunction with LAW . The court acquitted the applicant of the charges of having imputed offences to them and of having committed the offence in public , contrary to LAW CARDINAL ( CARDINAL ) and CARDINAL of the Code . It applied Article CARDINAL of the Code ( see paragraph CARDINAL below ) and replaced the applicant ’s criminal liability with CARDINAL administrative fines of ORG CARDINAL each . The court further ordered the applicant to pay each of the complainants compensation for nonpecuniary damage amounting to ORG CARDINAL , plus interest from DATE until settlement , and dismissed the remainder of their claims . Finally , it ordered the applicant to pay BGN CARDINAL in court fees . The court described the facts set out above and continued as follows :

“ To gather the information necessary for his article , [ the applicant ] had conversations with parents protesting in front of the [ GPE education inspectorate ] ... From them he learned about the alert which had triggered the appointment of the [ inspection commission ] . He talked to the head of [ the inspectorate ] , [ PERSON ] , and [ other journalists ] from PERSON ( whose names he did not disclose ) , from whom he learned that the inspection had revealed a number of violations and that it was expected that there would be a proposal to the Minister to impose stiff disciplinary punishments on the complainants . [ The applicant ] asserts that he [ also ] talked to the deputy regional governor in charge of education , [ Mr PERSON ] . [ However ] , at trial [ Mr PERSON ] testified that his conversation with the applicant had taken place after , not before , the article ’s publication .

Another witness , ... a colleague of the complainants , [ testified that ] the article ’s publication had had a severe negative impact on [ them ] , leaving them very depressed , worried and unable to do their work with their usual confidence .

On the basis of these findings of fact the court makes the following findings of law :

According to LAW ] , the offence of defamation consists in disseminating injurious statements of fact about someone or imputing an offence to him or her . ... The complainants accuse [ the applicant ] of committing both forms of the offence – disseminating untrue injurious statements of fact and imputing an offence to them . The complainants and their counsel maintain that the imputed offence was the taking of bribes from children , [ contrary to ] LAW [ of LAW ] . Having read the article carefully , the court finds that [ the applicant ] did not impute an offence to the complainants . The article does not contain any allegation that the complainants took bribes . Its first part ( including the headings ) stated that the complainants would be punished with disciplinary dismissal for having taken bribes . [ The applicant ] did not comment on the appropriateness of the purportedly impending punishment , and in the second part of the article described in a relatively detailed manner what he considered to be the facts of the matter , which would form the grounds for the punishments . These facts did not include bribetaking . It is averred that the unlawful admission of pupils was made possible by Dr [ ORG ] ’s fabrication of false medical documents and that the complainants relied on these documents without checking their accuracy . Taken together these parts of the article lead to the conclusion that [ the applicant ] did not allege that the complainants had taken bribes . The court accordingly finds [ him ] not guilty of the charge of imputing an offence . It is therefore not necessary to discuss the evidence and the facts suggesting the commission of such an offence , or [ the applicant ’s ] certainty ... that it had taken place .

[ The applicant ] did , however , commit the other form of [ defamation ] . In his article [ he ] disseminated an injurious statement of fact , namely that the complainants would be punished with disciplinary dismissal for having taken bribes for having children admitted to elite secondary schools in GPE . The injurious character of this statement is a metalegal characteristic . The law does not spell out the content of this notion . For this reason , whether or not a circumstance is injurious must be determined on the basis of [ public opinion ] . The dismissal of an individual from an official post for taking bribes is generally seen as a sign of that individual ’s poor morals . The court accordingly accepts that the disseminated statement is injurious .

According to LAW [ of LAW ] , [ those making allegedly defamatory assertions ] are not to be punished if the assertions are found to be true . This means that defamation has been committed only if the injurious statements disseminated are untrue . In the instant case this is so . It has been established that the complainants were not dismissed but [ only ] warned that they could face dismissal and that this did not happen on DATE . It is , however , rather more important to point out that the grounds for the disciplinary punishments were not the taking of bribes but the violations described in the report of the inspecting commission and in the reasons for the orders imposing disciplinary punishments .

The untrue injurious statement was disseminated through the publication of the article in ORG . It is well known and not disputed [ by the parties ] that this newspaper is circulated on the territory of [ the entire country ] . The court therefore accepts that the aggravating element of Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL [ of LAW ] is present .

The untrue injurious statement disseminated was connected with the performance of the ORG duties . As members of the admissions commission for pupils with chronic medical conditions and special educational needs they were ‘ public officials’ within the meaning [ of LAW ] . The court therefore accepts that the aggravating element of Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL [ of the Code ] is [ also ] present .

The untrue injurious statement was not disseminated in public . The fact that the offence was characterised [ as having been committed through the printed press makes it impossible for it to have been committed in public ] . An injurious statement is considered to have been disseminated in public if this was done in the presence of several persons , whereas the dissemination of information in the printed press ... involves no direct contact between the person imparting the information and those receiving it . The court therefore finds [ the applicant ] not guilty of [ disseminating the injurious statement in public ] contrary to LAW in conjunction with LAW [ of LAW ] .

The defence disputes the existence of mens rea . It asserts that [ the applicant ] was not aware that the statements he made were untrue . What is more , according to the defence [ the applicant ] believed that the complainants had been taking bribes in performing their duties as members of the commission . This belief was based on objective facts . These arguments are inapposite and should not be addressed by the court , as in the impugned article [ the applicant ] did not allege that the complainants had been taking bribes . Seen from this perspective , whether or not [ the applicant ] believed that bribes had been taken is irrelevant . What matters is whether [ the applicant ] was aware of the untruthfulness of [ the assertion ] that on DATE of publication of the article the Minister of Education and ORG ... would impose on the complainants the disciplinary punishment of ‘ dismissal’ on the grounds that they had taken bribes from sick children . This is so because , [ according to ORG caselaw , ] ‘ when [ a journalist ] has properly verified the truthfulness of the information in line with established journalistic practice [ and ] the internal nonbinding rules of the relevant newspaper or publishing FAC , by using the sources available in practice , [ he or she can be said to have acted ] in a professional manner and in good faith , which excludes criminal and civil liability for defamation ( [ citation ] ) . It has not been established that [ the applicant acted ] in a professional manner and in good faith . None of the sources used by [ him ] provided information to that effect . The information which [ he ] received from the head of the inspectorate , PERSON , and [ other journalists ] from PERSON indicated that at the close of the inspection the commission appointed by the Minister was to propose that the complainants be subjected to stiff disciplinary punishments ( on unspecified grounds ) . Before the publication of the article [ the applicant ] did not talk to the deputy regional governor , [ Mr PERSON ] . The conversations conducted with parents of children [ not admitted ] could not give [ the applicant ] reliable information either about the internal control measures envisaged by the Minister or about the grounds for taking them . At the time of publication there was not a single source indicating to [ the applicant ] that the complainants would be dismissed as a disciplinary measure or that the grounds given by the Minister for that would be bribetaking . The court therefore finds that [ the applicant ] realised the untruthfulness of the injurious statements he disseminated and that the offence was therefore intentional . [ The offence of defamation ] does not require the defamed persons to sustain damage . The antisocial consequences of such an act arise simply from the dissemination of the injurious statements . By publishing his article [ the applicant ] intended just that – to bring the untrue injurious statements to the knowledge of an unlimited number of people . The offence was committed with direct intent because [ the applicant ] was aware of the antisocial character of his act and wished its adverse consequences to occur ...

In sum , the court finds that [ the applicant ] has committed with respect to each of the complainants an offence under LAW ( CARDINAL ) and ( CARDINAL ) and CARDINAL in conjunction with LAW [ of LAW ] . ( The CARDINAL offences were committed [ in a single act ] . ) The penalty for such an offence is a fine ranging from MONEY and public reprimand . [ The applicant ] has not been convicted of a publicly prosecutable offence ... and the offences have not engendered pecuniary damage . [ The case thus comes under ] Article CARDINALa [ of the Code ] , and [ the applicant ] ’s criminal liability should be replaced with an administrative fine of ORG CARDINAL to ORG CARDINAL .

To determine the amount of the fine , the court ... took into account the mitigating and aggravating circumstances . [ The applicant ] was not found to have committed other transgressions , i.e. he does not exhibit criminal tendencies and the level of risk he presents to society is low . Despite the existence of CARDINAL additional qualifying elements ( which is of itself an aggravating factor ) , the nonpecuniary damage sustained by the complainants as a result of the offence is negligible ( see below for more on this point ) . [ The applicant ] denies any wrongdoing , which is his right , but at the same time has provided detailed explanations about the case and practical cooperation in ascertaining the truth . For these reasons , the court finds that there is a preponderance of mitigating circumstances , and fixes the punishment for each offence at the minimum amount , namely BGN CARDINAL .

The ORG claims for damages are wellfounded , because in all cases the dissemination of untrue injurious statements tarnishes the good name of the persons associated with the alleged facts . Under sections CARDINAL and CARDINAL [ of the DATE LAW ] the compensation [ for nonpecuniary damage ] must be determined by the court in equity . The court finds that the sum of BGN MONEY claimed by each of [ the complainants ] would amount to just compensation for the nonpecuniary damage suffered by them as a result of the slur on their reputations . However , [ the applicant ] is not liable to pay the entirety of that sum . Apart from the untrue injurious statements , in his article [ he ] also reported true injurious facts , in respect of which he does not bear any criminal or civil liability . The article points out that the complainants committed violations which led to the unlawful admission of children to the abovementioned secondary schools . These facts were true . Their publication by [ the applicant ] was legal , because in publishing them he was exercising his constitutional right to seek and impart information , and helping other citizens to exercise their constitutional right to receive information ( Article CARDINAL § CARDINAL ... of the LAW ) .

The evidence gathered in the case leads to the conclusion that the reputations of [ the complainants ] have suffered chiefly as a result of the true injurious facts reported by [ the applicant ] . [ The relevant regulations ] lay down a procedure whereby the ORG [ in line with its constitutional obligations ] encourages education , creating conditions for the vocational training of children with special needs or medical conditions . Since this activity is a constitutional obligation of the ORG , its performance in strict compliance with the relevant rules is of paramount importance . Seen from a different perspective , when the performance of this activity has been marred by a series of serious violations and this has led to the unlawful admission of pupils to the detriment of other pupils who have recognised medical conditions or needs , these violations inevitably lead to the loss of the good names of the officials concerned . For these reasons , the court finds that the reputations of [ the complainants ] suffered as a result of their own illicit behaviour . When imparting information about this [ the applicant ] went too far – alongside the true injurious statement he made an untrue statement about the impending punishments and the grounds for them . As a result , [ the ORG ] reputations suffered additionally , but not materially , because even if [ the applicant ] had not said what punishments would be imposed by the Minister , [ the ORG ] reputations would have been greatly impaired anyway . [ The applicant ] is liable only for the nonpecuniary damage arising out of the dissemination of the untrue injurious statements . In view of the foregoing , the court finds that the equitable amount of compensation is ORG CARDINAL for each of [ the complainants ] . The remainder of the civil claims are groundless and are to be dismissed . ”

In a decision of CARDINAL DATE ORG ordered the applicant to pay the ORG costs , amounting to ORG CARDINAL .

Both the applicant and the complainants appealed . The applicant argued , among other things , that the institution of criminal proceedings against the complainants on charges of bribery meant that there were grounds to suspect that they had committed such offences and that he had been justified in mentioning that fact in the article .

ORG ( GPE окръжен съд ) heard the appeal on DATE .

In a final judgment of DATE it upheld the applicant ’s conviction and sentence , but increased the award of damages , ordering the applicant to pay ORG MONEY to each of the complainants . ORG also upheld the lower court ’s ancillary costs order . It held , in so far as relevant , as follows :

Concerning the arguments ... that the [ lower court ’s ] judgment is illfounded and in breach of substantive law : The appeal states that criminal proceedings were instituted against the complainants on charges of bribery in breach of LAW [ of LAW ] , and that for this reason [ the applicant ] can not be deemed to have intentionally made untrue and injurious assertions . It can however be seen from the reasoning of [ the lower court ] that [ the applicant ] was acquitted of the charge of imputing to the complainants the offence of bribery . The [ lower court ’s ] reasoning on that point is fully shared by this court and , accordingly , the objections that the [ lower court ’s ] judgment was unfounded or in breach of substantive law do not call for further discussion .

The court finds that the punishments imposed on [ the applicant ] were properly fixed . [ The lower court ] correctly replaced [ the applicant ’s ] criminal liability [ under ] Article ORG of [ LAW ] with fines in the minimum amount allowed by the law , namely ORG CARDINAL for each of the offences , taking into account [ the applicant ’s ] lack of a criminal record or other antisocial acts , [ the ] lower level of risk [ he poses ] to society , [ and ] his detailed explanations about the facts of the case . In its reasoning the court said that the nonpecuniary damage sustained by the complainants was not significant . That view can not be shared by [ this court ] . Unlike pecuniary damage , the non - pecuniary damage caused through a criminal act should not be taken into account for the purpose of fixing the punishment . The nonpecuniary damage suffered by the victims of crime is strictly individual and should be taken into account solely for the purpose of fixing the amount of compensation , not the quantum and type of the punishment . Nevertheless , [ this court ] considers that the minimum penalties imposed on [ the applicant ] will [ be sufficient to ] further the aims of the punishment , as envisaged by [ LAW ] . The court therefore finds that this part of the [ lower court ’s judgment ] should be upheld .

As regards the civil claims for compensation for nonpecuniary damage :

The court finds unfounded the ORG requests to increase the amount of compensation to ORG CARDINAL,CARDINAL for each of them . It is true that the complainants sustained non - pecuniary damage – a blemish on their reputations , concerned as they are about their professional standing and good names – as a result of the offences against them . [ The lower court ] , however , correctly stated in its reasoning that [ the applicant ’s ] article had reported injurious facts which were true , namely that the complainants had committed violations in their work , which led to the unlawful admission of children to secondary schools , and which were more significant than the fact that the complainants would be dismissed . For this reason , the court considers that [ the lower court ] was right not to allow the civil claims in full . However , in [ this court ’s ] view , the awards [ it ] made are too small . The amount of ORG CARDINAL for each of [ the complainants ] can not make good their suffering resulting from the affront to their dignity . Regard being had to the way in which the offence was committed – circulation of the injurious assertions in a publication which is sold nationwide , thus bringing them to the attention of large number of people – , [ as well as ] the negative impact this had on the ORG mental state , health and capacity for work ... , this court finds that it would be just to award the complainants ORG CARDINAL each . This part of [ the lower court ’s ] judgment should therefore be modified , by increasing the amount which [ the applicant ] has to pay to the complainants to BGN CARDINAL for each of them in respect of nonpecuniary damage .

Concerning the costs of the proceedings :

In a decision of CARDINAL DATE [ the lower court ] ordered [ the applicant ] to pay the complainants the amount of ORG CARDINAL for costs . [ The applicant ] was found not guilty of the charge of imputing an offence and of the charge under Article CARDINAL § [ § ] CARDINAL ( CARDINAL ) [ and CARDINAL ] of [ LAW ] . Under [ the relevant provisions of LAW ] , he must accordingly bear the full cost related to the charges of which he was found guilty ... However , in this court ’s view , [ the lower court ] correctly ordered the applicant to pay the entirety of the costs in the case , because the complainants are also a private prosecuting party and it is the court ’s practice in such cases to award the costs in full . ... ”

In DATE the authorities issued enforcement proceedings against the applicant to recover the fine . Those proceedings were closed on DATE following the payment of the fine , plus interest , in its entirety . The total amount paid by the applicant was ORG CARDINAL,CARDINAL.CARDINAL .

NORP In DATE the CARDINAL complainants also issued enforcement proceedings against the applicant to recover the damages and the costs awarded to them . The amounts due were paid by ORG DATE and DATE . The newspaper recovered the sums paid by deducting them from the applicant ’s salary . The total amount paid in this way was ORG .

On DATE a member of ORG officially questioned the Minister of ORG and ORG about the affair . On DATE the Minister replied , saying , inter alia , that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings , which was a matter for the prosecuting authorities .

On DATE another journalist who had covered the story , PERSON , together with CARDINAL officials of ORG and ORG , testified about the “ sick children ” affair before ORG . At the end of the hearing ORG unanimously resolved to send the material to the GPE prosecuting authorities with a view to the possible initiation of criminal proceedings against PERSON , PERSON , Mr PERSON and Mr G.D. , asking the Minister of Health whether the medical doctors responsible had been punished , and asking the Minister of Education and ORG whether penalties had been imposed on PERSON , PERSON , Mr PERSON and Mr PERSON and whether the penalties had corresponded to the posts they occupied .

The relevant provisions of the DATE LAW read as follows :

“ The private life of citizens shall be inviolable . All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour , dignity and reputation . ”

“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , whether written or oral , sounds or images , or in any other way .

NORP This right shall not be exercised to the detriment of the rights and reputation of others , or for incitement to forcible change of the constitutionally established order , perpetration of a crime or enmity or violence against anyone . ”

“ The press and the other mass media shall be free and not subject to censorship . ”

“ CARDINAL . Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens or against national security , public order , public health or morals .

NORP Citizens shall have the right to information from ORG bodies or agencies on any matter of legitimate interest to them , unless the information is a ORG secret or a secret protected by law or it affects the rights of others . ”

“ Rights shall not be abused , nor shall they be exercised to the detriment of the rights or the legitimate interests of others . ”

Article CARDINAL of the DATE LAW , as in force since DATE , provides as follows :

“ CARDINAL . Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from MONEY , as well as by public reprimand .

NORP The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation . ”

If the defamation is committed through the printed press , or if the defamed parties are public officials carrying out their duties , it is punishable by a fine ranging from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL , as well as by public reprimand ( Article CARDINAL § § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL , as in force since DATE ) . Since DATE all instances of defamation are privately prosecutable offences ( Article CARDINAL , as in force since DATE ) . In DATE Article CARDINAL survived a challenge of unconstitutionality , with the ORG ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression ( реш. № CARDINAL от DATE г. по к. д. № DATE г. , обн. , GPE , бр. CARDINAL от CARDINAL юли DATE г. ) .

NORP The mens rea for the offence of defamation can only be direct intent or oblique intent ( recklessness ) , not negligence ( Article CARDINAL(CARDINAL ) ) . PERSON , in the form of intent or negligence , is an essential element of any criminal offence ( LAW and LAW , DATE and CARDINAL ) .

In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) ORG held that provided that , prior to publication , journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium , by using the sources available in practice , they could not be held to have acted wilfully or even negligently and were not guilty of defamation . It went on to say that , owing to the accessory nature of a civilparty claim , the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings . In such proceedings , the rules governing fault as an element of the tort of defamation were those of the criminal law . The court also held that under NORP law strict liability could not be applied in respect of defamation , and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals .

Article CARDINAL § CARDINAL , as in force at the relevant time , mandated the courts to replace convicted ORG criminal liability with an administrative punishment DATE a fine ranging from MONEY – if ( i ) the offence of which they had been convicted was punishable by DATE imprisonment or a lesser penalty , in respect of an intentional offence , ( ii ) they had not previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment , and ( iii ) the pecuniary damage caused by the criminal act had been made good . The administrative fine could not be higher than the criminal fine envisaged for the offence ( LAW ) . Along with the fine the court could impose occupational disqualification of DATE , if such a punishment was envisaged for the offence ( LAW ) .

On DATE ORG of ORG DATE ) , Towards decriminalisation of defamation , in which it called on GPE to , inter alia , guarantee that there is no misuse of criminal prosecutions for defamation ( point CARDINAL ) ; remove from their defamation legislation any increased protection for public figures ( point CARDINAL ) ; ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves , in particular means based on establishing the truth of their assertions and on the general interest ( point CARDINAL ) ; set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk ( point CARDINAL ) ; and provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury ( point CARDINAL ) .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

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

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

On DATE criminal proceedings were initiated against the applicant and CARDINAL co - accused on account of various offences which they had allegedly committed in their capacity as police officers . The applicant and another suspect retained Mr Barcsi as defence counsel . On DATE the ORG excluded Mr Barcsi from the proceedings . It held that because his CARDINAL clients ' interests conflicted , he was not eligible . This decision was later quashed by LOC . Subsequently , the other suspect retained another lawyer .

On DATE a bill of indictment was preferred in the case .

On DATE ORG again excluded Mr Barcsi from the applicant 's defence . On DATE ORG dismissed an appeal lodged by the applicant and Mr Barcsi . The courts observed that during the preliminary investigation Mr Barcsi had been retained by CARDINAL defendants ; however , since their testimonies had been contradictory , the double retainer had amounted to conduct against those defendants ' interest . The court held that the conflict of interest between these defendants had a significant bearing on the outcome of the case , in that the defence of one might be to the detriment of the other . They applied section CARDINAL(CARDINALc ) of the Code of Criminal Procedure , according to which a person acting against the interests of a defendant can not act as defence counsel . Mr PERSON 's complaint to the Attorney General was to no avail .

Subsequently , a legal - aid lawyer was appointed for the applicant . On DATE he complained to ORG that , in his view , the legal - aid lawyer had not prepared his case adequately .

Hearings were held on DATE , CARDINAL May , DATE and DATE . Closing statements were heard on DATE .

ORG delivered a judgment on DATE . The applicant was found guilty of various charges and sentenced to DATE imprisonment , to DATE prohibition from public affairs and to a fine of MONEY . The lapse of time since the commission of the offences was taken into account as a mitigating factor .

On appeal , ORG scheduled a hearing for DATE . According to the information available in the case file , the case is still pending before the appellate court .

Act No . XIX of DATE on LAW provides as follows :

“ ( CARDINAL ) The defendant , the defence counsel ... are entitled to file a written complaint with the trial court complaining about an omission ... allegedly committed by that court , requesting that the omitting court be instructed to perform the omitted procedural act or adopt a decision or ... take an appropriate action in the case within a reasonable time limit .

( CARDINAL ) Such a complaint may be filed if :

a ) the law prescribes a time - limit for a court within which to perform a procedural act or to pass a decision and the time - limit has elapsed without any result ,

b ) a court has set a time - limit for [ a participant of the procedure ] within which to perform a procedural act , the time - limit has elapsed without any result , and the court has failed to impose on the one responsible the measures allowed by the law ...

( CARDINAL ) Except for the case specified under subsection ( CARDINAL ) , the trial court shall , within DATE , directly forward the files to the court competent to decide on the complaint . In an enclosed document , it shall set out the reasons which – according to its assessment – made impossible the performance of the procedural act or the passing of a decision .

( CARDINAL ) If the trial court itself finds the complaint well - founded , it shall , within DATE counted from the receipt of the complaint , take or order to take appropriate measures in order to terminate the situation complained of . It shall inform the complainant of the manner in which the complaint has been settled ...

( CARDINAL ) If the [ superior ] court determining the complaint admits the complaint , it shall , by setting a time - limit , instruct the [ trial ] court to take ... the action required for the proper progress of the case .... If it finds the complaint ill - founded , it shall dismiss it in a reasoned decision . No further appeal shall lie against this decision ... ”


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Pecuniary damage - Government to enforce the judgment debt

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

On DATE the applicant 's husband died due to the fault of an employee of ORG .

On DATE ORG of PERSON ordered the company to pay the applicant ORG CARDINAL in compensation .

On DATE ORG discontinued the enforcement proceedings due to the debtor 's lack of funds and the applicant 's refusal to take the debtor 's property instead of the money .

On DATE the company was declared bankrupt and the liquidation proceedings were initiated against it .

The judgment remains unenforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant is an NORP citizen , born in DATE , and is presently detained in a prison in GPE . He is represented before the ORG by Mr Hitzenbichler , a lawyer practising in GPE .

On DATE the applicant was arrested under the suspicion of having robbed and killed the taxi driver PERSON

When questioned by the police at PERSON the applicant first denied any connection with the crime , but then - on DATE - he made a confession before the police at GPE . He stated that he had threatened the taxi driver with a firearm described as signalling device ( GPE ) , whereby unintentionally a shot had gone off . On DATE he confirmed this confession before a judge on duty ( GPE ) who had been called in immediately by the police officers .

On DATE the investigating judge appointed an ex - officio defence counsel for the applicant and ordered for DATE an inspection of the scene of the crime ( ORG ) .

On DATE the inspection was conducted by the investigating judge in the presence of the applicant , his defence counsel , the public prosecutor , a court expert and several police officers . According to the TIME of the inspection , at the beginning the investigating judge asked the applicant whether he maintained his confession . The applicant again confirmed that he had robbed the taxi - driver , but denied having killed her intentionally . Then the applicant gave a detailed account of the course of the events and his flight until he had met a man at a pizzeria who had brought him to town . Thereafter the “ course of the events ” was reconstructed with the help of a police officer in the role of the victim , using the original car and the firearm the applicant had allegedly used . The applicant showed how he had threatened the victim by holding the fire arm against her neck , how he had got hold of the victim ’s purse , how the victim had tried to get off the car and turned towards the applicant and how the shot had gone off . This reconstruction of the course of events was filmed with a video camera .

On DATE the applicant withdrew his confession claiming that on DATE , the day of the crime , he had been at home in PERSON with his mother .

On DATE and DATE and DATE the trial against the applicant took place before ORG ( PERSON ) sitting as an ORG ( Geschworenengericht ) . When questioned about the events on DATE , the applicant maintained that on DATE he and his girlfriend had been in several bars in GPE and that TIME his girlfriend had brought him home where he stayed TIME . It was therefore impossible that he had committed the crime close to GPE ( QUANTITY away ) TIME He claimed that the witnesses who allegedly had seen him had been mistaken . When confronted with his previous confessions he submitted that he had made the first confession because he had been forced to do so by the police and had maintained his confession before the judge on duty and the investigating judge because he had not dared to withdraw it in the presence of police officers .

Subsequently the court heard as witness the police officers who had carried out the investigations , the judge on duty and the investigating judge . They were questioned about the course of the investigations and the circumstances of the applicant ’s confession . The police offices denied having exerted pressure on the applicant and stated that the applicant had given details which at that time had been unknown to them such as the place where the victim ’s purse and documents had been thrown away . The judge on duty stated that he had also questioned the applicant alone , in the absence of the police officers , and the applicant had expressly stated that no pressure had been exercised on him .

The court then questioned the managing director of a pizzeria who had identified the applicant as being the person whom he had driven at the relevant time from a bar near to the scene of the crime to the centre of GPE , as well as his employee who also had identified the applicant .

Moreover , the court heard as witness the applicant ’s girlfriend , his mother and several other persons on the question whether it was possible that at the time of the crime the applicant had been in GPE . Several witnesses stated that they had seen the applicant in a bar in PERSON and that he had left the bar with his girlfriend . His mother stated that he had been at home by TIME and had not left the house later .

On DATE the video - film made in the course of the inspection of the scene of the crime was shown . Neither the applicant , nor his defence counsel raised any objections . When questioned the applicant stated that during the inspection he did have the possibility to consult with his defence counsel .

Thereafter the court heard a medical expert . He explained , inter alia , that the victim ’s final position did not correspond to the applicant ’s account in his confession , namely that the shot had gone off when he was sitting inside the car . According to the medical expert it was more likely that the taxi driver had been shot from the outside . The expert also excluded that an ordinary firearm had been used , a signalling device using ordinary bullets could have been a suitable weapon .

The court refused to read out a private expert opinion on the credibility of the applicant ’s confession or to hear that expert on this issue .

On DATE ORG convicted the applicant of aggravated robbery and murder and sentenced him to DATE imprisonment .

On DATE the applicant , represented by a defence counsel of his own choice , filed a plea of nullity ( GPE ) with ORG ( Oberster Gerichtshof ) . He complained , in particular , that the video - film made in the course of the inspection of the scene of the crime was shown at the trial . The applicant submitted that during this inspection he had been intimidated by the presence of a large number of taxi - drivers and that he did not have any contact with his ex - officio defence counsel before the inspection . The applicant further complained that ORG had refused to admit a private expert opinion on the credibility of the applicant ’s confession . The applicant also claimed that in view of numerous inconsistencies and unresolved questions ORG should have taken further evidence on its own motion or to advise the applicant ’s defence counsel to do so .

On DATE ORG dismissed the applicant ’s plea of nullity and increased his sentence to DATE imprisonment . ORG considered that neither the showing nor the making of the video - film in the course of the inspection of the scene of the crime constituted per se a ground of nullity . Moreover , since the applicant had failed to oppose to the showing of the film at the trial by making a formal request to the court not to do so , he could not raise this matter in the proceedings on the plea of nullity . As regards ORG refusal to take accept as evidence the opinion of a private expert ORG found that the applicant had failed to ask the court to appoint an expert . Private expert opinions only served the purpose to enable an accused to make the relevant requests . As regards the applicant ’s complaint that ORG had failed to take of its own motion further evidence or to advise his defence counsel to do so , ORG noted that the applicant has not filed any request for the taking of further evidence and that it had been up to him to do so . Besides , any inconsistencies between the applicant ’s confession made at the stage of the preliminary investigations and the findings of the court experts had been discussed in detail at the trial . The opinions of the experts had been conclusive and without contradictions ; thus , there had been no necessity to obtain further expert reports . It had therefore been up to the jury to assess the evidence before it and to evaluate whether the applicant ’s initial confession or the statements he had made during the trial were more credible .


Violation of Art. 6-1;Just satisfaction reserved

Mrs. PERSON was born in DATE and is resident at PERSON . She is of GPE nationality .

In or DATE , although she had been unemployed for some time , Mrs. ORG ceased to register at ORG ) . This was because she had fallen ill and did not consider herself sufficiently recovered to be fit to work . On DATE , ORG ( ORG FAC ) in GPE decided that as from DATE she was no longer entitled to the sickness allowances she had been receiving until then , as the ORG ’s consulting doctor had judged her fit to resume work on DATE .

She appealed to ORG ( PERSON ) in GPE .

The President of ORG sought the opinion of CARDINAL of the permanent medical experts attached to ORG , a gynaecologist practising at GPE , who examined the patient and gave her the opportunity to comment . After consulting CARDINAL other doctors ( a gynaecologist and CARDINAL general practitioners , including Mrs. ORG ’s ) , the expert concluded on DATE that , gynaecologically speaking , she had been fit for work since DATE ; however , he felt it necessary also to consult an orthopaedic specialist .

On DATE , another permanent medical expert , an orthopaedic surgeon , examined the applicant and offered her the opportunity to comment . He also sought the views of the CARDINAL practitioners mentioned above . In his report of CARDINAL DATE , he too found that Mrs. ORG had been fit to resume employment as from DATE .

On the basis of these CARDINAL reports , the President of ORG ruled against the applicant .

The applicant filed an objection ( verzet ) , alleging that she had not been given a fair hearing .

On DATE , ORG declared the objection inadmissible as it fulfilled none of the grounds laid down in section CARDINAL ( CARDINAL ) of LAW ( DATE paragraph CARDINAL below ) . In an obiter dictum , it stated that the case had been given a fair hearing , in that CARDINAL permanent medical experts had examined the applicant and allowed her to state her objections orally .

Mrs. PERSON challenged this decision before ORG ( ORG ) at GPE . In particular , she maintained that the limitations imposed by sections CARDINAL and CARDINAL of the above - mentioned Act infringed the principle of a fair trial enunciated in DATE ( article CARDINAL ) of the Convention .

On DATE , ORG declared the appeal inadmissible by virtue of section CARDINAL ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) .

As far as health insurance is concerned , social security in the GPE is managed jointly by the ORG - which in general confines itself to establishing the legal framework of the scheme and to seeing to co - ordination - , by employers and by employees .

The branches of the economy , including the liberal professions , are divided into sectors , each with an occupational association ( bedrijfsvereniging ) responsible for implementation of the social security legislation .

These associations are legal persons within the meaning of LAW ; the method of their establishment , their structures and their powers are laid down in the Social Security Organisation Act CARDINAL ( Organisatiewet Sociale Verzekeringen ) . They are subject to approval by the Minister for ORG and Employment on the basis of their representative character . The Minister may also decide of his own motion to set up such an association ; in that event , he determines and amends their articles of association as needed and he appoints , suspends and dismisses the members of their governing boards . In addition , he stipulates the assurances to be given for the discharge of the duties of the occupational associations and he receives from each of them an annual report and an annual statement of their accounts .

The occupational associations are semi - public institutions and operate like private insurance companies .

They may entrust to a common administrative office ( Gemeenschappelijk Administratiekantoor ) , recognised by the Minister , the administrative work resulting from the application of social security law .

ORG ( Sociale Verzekeringsraad ) , set up by the ORG and comprising representatives of the ORG , employers and employees , supervises the proper implementation of the legislation in question .

Under LAW DATE ( PERSON ) , as amended in DATE , insurance against sickness is compulsory for persons DATE who are bound by a contract of employment with a public or private employer , or who can be assimilated to this category ( sections CARDINAL and DATE ) . Persons formerly bound by a contract of employment who are unemployed and in receipt of unemployment benefits are also treated as salaried employees for this purpose . Self - employed workers may take out policies with private companies .

Sickness includes accidents , whether related to the employment or not . In case of unfitness for work through sickness , an employed person receives an allowance of MONEY of his DATE pay . He or she applies directly to the occupational association to which his or her employer belongs .

The entitlement to an allowance flows directly from the LAW ( section CARDINAL ) .

The scheme is administered by the occupational associations ( see paragraph CARDINAL above ) , and the funding is provided entirely by employers and employees . The LAW specifies the rates of contributions , which are at present MONEY for the employee and MONEY for the employer , calculated on a maximum DATE wage of MONEY .

Disputes arising out of the application of ORG DATE are governed by LAW DATE ( as last amended on DATE ) . For disputes concerning fitness or unfitness for work , there exists a simplified procedure known as the permanent - medical - expert procedure ( vaste deskundige procedure ) ( sections CARDINAL to CARDINAL ) . The expert - a doctor who is a specialist or a general practitioner - is appointed for DATE by the Minister of ORG and he is placed under oath .

On the lodging of an appeal of this kind , the President of ORG ( there are CARDINAL in the GPE ) may immediately instruct its permanent medical expert to carry out an enquiry ( onderzoek ) into the matter ( section CARDINAL ) .

Within DATE of notification of the appeal , the authority that delivered the decision which is challenged must submit all relevant files on the case ( section CARDINAL ) .

The permanent medical expert consults the private practitioner of the person concerned and the relevant occupational association doctor , except where the file shows that they share his opinion ( section CARDINAL ( CARDINAL ) ) . He summons and examines the appellant ( section CARDINAL ( CARDINAL ) ) ; he may consult another practitioner ( section CARDINAL ) . Finally , he makes a written report to the President of ORG ( section CARDINAL ) .

The President - who is a judge appointed for life - gives a reasoned decision ( beschikking ) which refers to the conclusions of the medical expert .

An appeal against the President ’s decision lies to ORG , but solely on CARDINAL or more of the following CARDINAL grounds ( section CARDINAL ) : that the expert knew the patient in another capacity or failed to comply with the requirements of section CARDINAL ( see paragraph CARDINAL above ) ; that the President ’s decision does not bear upon the dispute or has not followed the expert ’s advice . Unless ORG declares the appeal inadmissible or unfounded , the normal procedure applies . The parties then have the opportunity of studying the case - file on the premises of ORG at a time determined by the clerk or of receiving copies . The President may however decide , in the mental or physical interest of the appellant , that he or she shall not have access to the medical reports but shall be informed of their contents and may designate a competent person , such as his or her private practitioner or lawyer , to inspect them on the LOC ( section CARDINAL ( CARDINAL ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) ) .

ORG gives its ruling after written pleadings have been filed and oral submissions heard .

Its decision is not subject to appeal before ORG ( section CARDINAL ( CARDINAL ) of ORG ) . However , according to that ORG ’s established case - law , an exception is made where rules of a formal nature have not been observed .


The applicant , Mr PERSON , is a NORP national who lives in PERSON .

The applicant is a practising lawyer and member of ORG ( Rechtsanwaltskammer ) . His professional letterhead used to refer to him as a “ specialised lawyer in labour and criminal law ” ( GPE für GPE ) and “ specialist in traffic law ” ( “ Verkehrsrechtsspezialist ” ) . In a footnote annexed to the latter reference , the applicant stated that he was a certified graduate of a specialisation course run by ORG ( PERSON ) . On a complaint from a fellow lawyer , ORG requested the applicant to refrain from using the term “ specialist in traffic law ” . When the applicant refused , ORG brought a claim against the applicant under LAW ( see Relevant domestic law and practice part , below ) .

On DATE ORG ordered the applicant to refrain from using the term “ specialist in traffic law ” on his letterhead failing which he would be liable to a fine of MONEY ( ORG ) . It found that the term “ specialist in traffic law ” amounted to unfair and misleading advertising within the meaning of sections CARDINAL and CARDINAL of LAW . ORG noted that NORP law provided for different categories of specialisation . A lawyer could refer on his professional letterhead to a “ main focus of interest ” if he or she had gathered particular knowledge in a particular field of law . A lawyer could refer to a “ main focus of practice ” if he or she had extensively worked in a particular field of law for DATE . Moreover , a lawyer could be granted the right to call himself or herself a “ specialised lawyer ” ( GPE ) if he had special expertise and experience in a particular field of law , which required inter alia participation in special training courses with exams and DATE of practice with a minimum number of relevant cases . ORG stressed that a lawyer had to overcome high hurdles before being granted the right to call himself or herself a “ specialised lawyer ” . From the perspective of an ordinary client , the term “ specialist ” would suggest an even higher degree of specialisation than a “ specialised lawyer ” . This would however be a mistake in view of the high requirements to obtain the right to refer to oneself as a “ specialised lawyer ” . If a lawyer were to refer to himself or herself as “ specialist ” , he or she would therefore mislead ordinary clients by creating an erroneous impression . This would lead to a competitive advantage as against those lawyers who complied with the hierarchy of specialisation as provided for by NORP law .

The applicant ’s appeal was dismissed by ORG on DATE . It referred to the reasoning of ORG and found that mere participation on a course on traffic law was not sufficient to justify the reference as a “ specialist in traffic law ” . The applicant had failed to demonstrate that he had worked on an above - average number of cases . He had submitted a list of cases without any indication that these cases required particular knowledge of traffic law . The list was therefore not apt to demonstrate that the applicant indeed specialised in traffic law . The applicant bore the burden of proof in this respect .

On DATE , ORG refused , without giving any reasons , to admit the applicant ’s constitutional complaint because it was inadmissible .

Relevant provisions of LAW ( PERSON gegen den unlauteren PERSON ) :

“ Any person who , in the course of business activity and for purposes of competition , commits acts contrary to honest practices may be enjoined from performing those acts and held liable for damages . ”

“ Any person who , in the course of business activity and for purposes of competition , makes misleading statements concerning business matters , in particular concerning the nature , the origin , or the manner of manufacture , or the pricing of individual goods or commercial services or of the offer as a whole , concerning price lists , the manner or the source of acquisition of goods , concerning the possession of awards , concerning the occasion or purpose of sale , or concerning the size of the available stock , may be enjoined from making such statements . ”

According to LAW for ORG ( PERSON für PERSON ) , a lawyer may refer in his professional letterhead to a “ main focus of interest ” ( ORG - schwerpunkt ) if he or she has gathered particular knowledge in a particular field of law through studies , publications or former professional work . If the lawyer has extensively worked in a particular field of law for DATE , he or she may refer to that field as a “ main focus of practice ” ( PERSON ) . Moreover , if a lawyer has special expertise and experience in a particular field of law , he or she may be granted the right to call himself or herself a “ specialised lawyer ” ( GPE ) by the Bar to which he or she belongs ( Section CARDINALc of LAW , GPE ) . According to LAW ) , such special expertise and experience requires inter alia participation in special training courses with exams and DATE of practice with a minimum number of relevant cases .

On DATE , ORG found in a different case that the decision of ORG for ORG ( Anwaltsgerichtshof ) not to permit a lawyer in GPE to use the term “ specialist in traffic law ” in his letterhead violated that lawyer ’s freedom to choose an occupation ( PERSON ) under LAW ( CARDINAL BvR CARDINAL/CARDINAL ; ORG , pp . CARDINAL et seq . ) . In that case , the lawyer had been working in the field of traffic law in several practical and theoretical functions for DATE and wanted to refer to that expertise in his letter head . ORG took the view that it was doubtful whether the Rules for ORG sufficiently satisfied the interests of both lawyers and their clients . The sequence of “ main focus of interest ” , “ main focus of practice ” and “ specialised lawyer ” could be justified in fields of law that recognised “ specialised lawyers ” . The term “ specialised lawyer in traffic law ” did however not exist under NORP law and could consequently not be confused with the term “ specialist in traffic law ” . The danger of misleading clients would therefore exist only if the lawyer was not in fact a specialist in the general meaning of the word .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in DATE and lived before his arrest in the GPE region . He is currently serving a prison sentence in a correctional colony in the FAC region .

The applicant stood trial on charges of robbery and murder before ORG ( “ the ORG ” ) .

On DATE ORG found the applicant guilty of robbery and aggravated murder , and sentenced him to twenty years’ imprisonment with forfeiture of estate . The applicant ’s co - defendant , PERSON . , was found guilty of conspiring to commit robbery , incitement to commit robbery , aiding and abetting , and concealing evidence of murder .

Regarding the applicant ’s right to appeal against his conviction , the judgment of DATE stated as follows :

“ The judgment may be appealed against to ORG of GPE by lodging grounds of appeal with ORG within DATE of the date of the pronouncement of the judgment . Convicted persons held in detention may appeal against the judgment within the same time - limit , which starts to run from DATE when they received a copy of the judgment .

If an appeal is lodged , the convicted persons are entitled to apply for participation in the examination of their case by the appeal court . ”

The record of the hearing before the trial court , which was issued on DATE , stated as follows :

“ The procedure for lodging an appeal against the judgment within DATE of its pronouncement was explained [ to the parties ] , as was the procedure for convicted persons to lodge appeals within the same time - limit , starting to run from the date on which they received a copy of the judgment .

The right to apply for leave to take part in the examination of the case by the appeal court was also explained ” .

On DATE a copy of the judgment of DATE was served on the applicant .

On DATE the applicant ’s co - defendant appealed against the judgment of DATE to ORG of GPE ( “ the ORG ” ) . He submitted that it was him and not the applicant who had committed the murder , but that the trial court had not verified his version of the events .

The Government submitted that on an unspecified date the applicant had appealed against the judgment of DATE . However , ORG had returned his grounds of appeal to him for correction . In its accompanying letter ORG advised the applicant that his grounds of appeal should comply with the requirements of LAW ( “ the CCrP ” ) . The Government did not provide the ORG with a copy of that letter .

On DATE the applicant , who was detained in GPE remand prison , submitted a corrected version of his grounds of appeal against the judgment of DATE . He complained , in particular , that he had not committed the impugned crimes and had an alibi which the trial court had refused to verify ; police officers had ill - treated him during the pre - trial investigation to extort a confession from him ; and his conviction had been based on statements by witness P. and his co - defendant , PERSON . , given during the pre - trial investigation under pressure by police officers , and which they had refuted before the trial court . Moreover , PERSON . had confessed before the trial court to having committed the murder himself . The applicant asked the appeal court to quash his conviction . When lodging his appeal , the applicant did not expressly state that he wished to take part in the appeal hearing .

According to the Government , on DATE ORG informed all the participants of the proceedings , including the applicant and his counsel , that the criminal case had been referred to ORG .

On DATE the applicant submitted a request to take part in the examination of his appeal by ORG . On DATE the applicant ’s co - defendant also applied for leave to take part in the appeal hearing . According to the Government , ORG received those requests on DATE .

On DATE the applicant submitted additional grounds of appeal , which were received by ORG on DATE . However , he did not state in his additional grounds of appeal that he wished to take part in the appeal hearing .

On DATE ORG of GPE ( “ the ORG ” ) , referring to Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the CCrP ( see Relevant domestic law below ) , dismissed the requests submitted by the applicant and his co - defendant to take part in the appeal hearing . ORG held as follows :

“ ... on DATE PERSON submitted a request to take part in the examination of his criminal case by the appeal court .

It follows from the materials of the case that the judgment was delivered on DATE and copies of that judgment were served [ on the convicted persons ] on DATE .

... on DATE PERSON submitted his grounds of appeal , in which he did not express his wish to take part in the appeal hearing .

On DATE the case , together with grounds of appeal submitted by the convicted persons , was forwarded to ORG [ GPE ] ... The case arrived at ORG on DATE .

It was not until DATE respectively that the convicted persons [ the applicant and his co - defendant ] submitted requests for participation in the appeal hearing .

However , their requests should not be granted , since in accordance with LAW [ CCrP ] if a convicted person expresses a wish to take part in the examination of his case by the appeal court , he should indicate this in his grounds of appeal .

The convicted persons did not indicate in their grounds of appeal their wish to be brought to ORG [ Russian Federation ] . Instead they lodged such requests DATE , when their case had already arrived at ORG ” .

On DATE ORG examined the appeals lodged by the applicant and his co - defendant against the judgment of DATE in their absence . The applicant was not represented at that hearing . The prosecutor was present at the hearing and supported upholding the applicant ’s conviction . He requested reclassification of the applicant ’s actions in accordance with amendments to LAW .

Having studied the materials of the case , the appeal court found that the trial court had verified PERSON . ’s version of the events whereby he and not the applicant had committed the murder . However , that version had not been confirmed by the materials of the case . The applicant ’s alibi had been verified and had been disproved by the statements of witness PERSON . , which had also been corroborated by other evidence . Furthermore , the GPE complaints of unlawful pressure by the police were unsubstantiated and refuted by evidence in the case .

On DATE ORG reclassified the crimes committed by the applicant . In particular , it excluded a number of aggravating circumstances and amended the applicant ’s sentence to exclude forfeiture of his estate . ORG upheld the rest of the judgment .

Under LAW of GPE , all persons are equal before the law and the court ( LAW ) .

Any person convicted of a crime has the right to appeal against the verdict to a higher court in accordance with the procedure established by federal law , as well as to request pardon or mitigation of the punishment ( LAW ) .

A defendant in criminal proceedings is entitled to participate in the examination of the criminal case by the courts of first instance , second instance and supervisory instance , and in the proceedings in which the court examines the measure of restraint to be imposed ( LAW DATE ) .

The appeal court will verify the legality , validity and fairness of the trial court judgment . The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law relating to a lesser offence , but has no power to impose a more severe penalty or apply the law relating to a more serious offence ( Article CARDINAL ) .

If a convicted person wishes to take part in the appeal hearing , he must indicate this in his statement of appeal ( LAW ) .

The parties will be notified of the date , time and place of an appeal hearing DATE in advance . The court will decide whether to summon a convicted person held in custody . If the convicted person held in custody has expressed a wish to be present at the examination of the appeal , he or she is entitled to participate either directly in the court session or by video link . The court will decide the form of participation of the accused person in the court session . A defendant who has appeared before the court will always be entitled to take part in the hearing . If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear , this will not preclude examination of the case ( Article CARDINAL § § DATE ) .

At the hearing the appeal court will hear the statement of the party who lodged the appeal and the objections of the opposing party . The appeal court will be empowered , if a party so requests , to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party ( LAW ) .

The appeal court may decide to dismiss the appeal and uphold the judgment , to quash the judgment and terminate the criminal proceedings , to quash the judgment and remit the case for a fresh trial , or to amend the judgment ( Article CARDINAL ) .

Chapter CARDINAL sets out a procedure for lodging applications and petitions by participants of criminal proceedings . A suspect or defendant , or his or her defence counsel , has the right to lodge applications with the investigator , prosecutor or a court to conduct procedural actions or to take procedural decisions to establish the circumstances that are of importance for the criminal case and also for ensuring the rights and legitimate interests of the person lodging the application or the person he represents ( Article CARDINAL ) . Applications can be lodged at any time in the course of the proceedings in a criminal case ( Article CARDINAL ) .

Chapter DATE of the Code sets out a procedure for reopening of the criminal case in view of new and newly discovered circumstances . It provides , in particular , that a judgment , a court finding or ruling that has taken legal effect may be reversed , and proceedings in the criminal case may be reopened in the event that ORG has established that in the course of examining the criminal case , a court of GPE , has violated the provisions of LAW ( Article CARDINAL ) . There are no time - limits for reviewing a judgment of conviction in view of new or newly discovered circumstances in favour of the convicted person ( Article CARDINAL ) .

ORG has examined a number of complaints challenging the compatibility with the LAW of provisions of the old LAW ( in force until DATE ) and the new Code of Criminal Procedure ( in force since DATE ) governing participation of a person convicted of a criminal offence by a first - instance court in the examination of his appeal against conviction by a second - instance court .

In its leading ruling of DATE on a complaint lodged by PERSON , ORG held as follows :

“ ... implementation of constitutional guarantees of judicial protection ... implies that a convicted person who has expressed a wish to take part in a court hearing may not be deprived of the opportunity to file objections and lodge petitions , acquaint himself with the position of [ other participants ] expressed in the court hearing and additional materials of the case , if any , and to provide explanations , including in relation to the prosecutor ’s opinion .

... Those guarantees may be implemented not only by providing the convicted person with an opportunity to participate in the court hearing in person , but also in other ways . In particular , a convicted person may entrust his defence to a lawyer of his own choosing , and provide written replies to the arguments contained in the grounds of appeals , protests and submissions to the appeal court by other participants in the proceedings . What is significant in the constitutional context is that in the interests of justice a convicted person who has expressed a wish to take part in the court hearing should be provided with an effective opportunity to state his position regarding all aspects of the case and bring it to the attention of the court .

... The challenged provision of the [ old ] CCrP ... does not prevent the appeal court , which is under an obligation to verify the lawfulness and validity of the judgment , from finding that the participation of a convicted person in the court hearing is indispensable and taking measures to ensure his presence at the hearing . The court may also examine the case in the absence of the convicted person if he has not expressed the wish to take part in the court hearing .

At the same time , those provisions allow the appeal court to dismiss the convicted person ’s request to participate in the hearing and to take a final decision in the case without providing him with any other legal means for implementation of his rights ... This results in a deviation from the principle of equality of all persons before the law and the court and in the limitation of the constitutional rights to judicial protection , examination of the case by a tribunal established by law , and review of the judgment by a higher court ... Moreover , this breaches LAW , which guarantees that court proceedings will be adversarial and will respect equality of arms . Those guarantees imply that the prosecution and the defence should be provided with equal procedural opportunities to state their position during the examination of the case by the appeal court ... ”

Taking the above considerations into account , ORG held that the challenged provisions of the old CCrP were incompatible with the LAW in so far as they allowed the appeal court , if it dismissed a convicted person ’s request to take part in the hearing , to take a final decision in the case without providing that person with an opportunity to acquaint himself with the materials of the court hearing and to state his position on the questions examined by the court .

In its further decisions on the complaints challenging the compatibility of the new ORG with the LAW , in particular of LAW § CARDINAL of that Code , ORG further developed its position regarding the participation of convicted persons in the examination of their case by the appeal court .

On DATE ORG refused to examine on the merits a complaint lodged by Mr S. challenging the compatibility with LAW CARDINAL § CARDINAL of the new CCrP in so far as that provision allowed the appeal court to examine his grounds of appeal in his absence , since he had applied to participate in the examination of his criminal case by the appeal court not in his initial grounds of appeal but in additional grounds of appeal which were submitted later . ORG held as follows :

“ In accordance with the legal position expressed by ORG in its rulings of DATE , no . CARDINAL , DATE , no . CARDINAL and DATE , no . CARDINAL-П , and decisions of DATE , no . CARDINAL-О , DATE , no . CARDINAL and DATE , no . CARDINAL-О , providing the parties with an effective opportunity to state their position regarding all aspects of the case is a necessary requirement of judicial protection and a fair trial . Depriving the convicted person of an opportunity to familiarise himself with all the materials of the case and to bring to the attention of the court arguments refuting the conclusions of the trial court , either by way of his personal presence at the appeal court hearing or by way of video link or any other way , would breach his right to judicial protection and the principle of equality of arms .

LAW of the [ new ] ORG provides a convicted person with the right to apply for participation in the examination of his criminal case by the appeal court by indicating his wish to attend in his grounds of appeal . The provision ’s aim is to provide him with an opportunity to state his position on the case before the appeal court and shall not be regarded as limiting his right to judicial protection and other rights guaranteed by LAW . In addition , the provision does not deprive the convicted person of the right to apply for participation in the appeal hearing if he makes such a request not in his grounds of appeal , but in accordance with the procedure provided for by LAW of the [ new ] CCrP of GPE , which places an obligation on the court to take a lawful , reasoned and duly motivated decision on such a request ... ”

The Constitutional Court confirmed its interpretation of LAW of the [ new ] CCrP in its decision of DATE , by which it refused to examine on the merits a complaint lodged by Mr T. challenging the compatibility of that provision with the LAW . Citing its decision of DATE , ORG held as follows :

“ ... a different interpretation of LAW of the [ new ] ORG would not only be contrary to Articles CARDINAL , DATE and CARDINAL of the LAW of GPE and the above - cited legal position of ORG of GPE , but also , contrary to the general principle of equality guaranteed by LAW , it would unreasonably worsen the situation of convicted persons held in custody compared to that of the other participants of the criminal proceedings , including convicted persons who have not been deprived of their liberty , whose right to take part in the appeal court hearing is not limited ( under LAW [ new ] CCrP a convicted person or a person acquitted of all charges who appears before the court will always be entitled to take part in the hearing ) .

Therefore , LAW of the [ new ] ORG , taken together with the provisions of LAW of that Code , does not prevent a convicted person from applying for participation in the examination of his criminal case by the appeal court after submitting his grounds of appeal . This implies that the court has an obligation to take a lawful , reasoned and duly motivated decision on such a request ... ” .


No violation of Art. 3;No violation of Art. 8;No violation of P1-1;No violation of Art. 13;No violation of Art. 14+3;No violation of Art. 14+8;No violation of Art. 14+13;No violation of Art. 14+P1-1

The applicant was born in DATE and lives in GPE . He was living in GPE at the time of the alleged events giving rise to this application . The facts of the case are in dispute between the parties and may be summarised as follows .

Until DATE the applicant lived in GPE , a village of LOC in GPE province , at that time a state - of - emergency region of GPE . In DATE , terrorist activity was a major concern in this area . Since DATE a violent conflict had been going on in the region between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( ORG of Kurdistan ) . The inhabitants of the applicant 's village were under pressure by ORG security forces to agree to become village guards .

On DATE soldiers , accompanied by persons wearing masks , raided GPE . They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the ORG as village guards . They beat up CARDINAL young men . The soldiers then chose QUANTITY houses and set them on fire after throwing a white powder on them . The houses of the applicant 's brother and cousin completely burned down .

NORP Following this event , the villagers lived in fear for their security . Some of them left the village , and the rest , including the applicant , preferred to stay . The security forces visited the village CARDINAL times a week in order to force the inhabitants to agree to become village guards .

NORP In DATE the heads of CARDINAL families agreed under pressure to become village guards . However , these newly recruited village guards , protected by the ORG , also burned down CARDINAL or QUANTITY houses per day . The applicant 's house was also burned down , which forced the applicant and his family to leave the village and settle in LOC . In the meantime , the village guards cultivated the applicant 's lands , used the remainder of the materials left from his house and chopped and sold his poplar trees . Since the applicant could not overcome the economic difficulties to sustain his living he moved to GPE to find a job .

On DATE , the applicant lodged a petition with the Malazgirt District Governor 's office and asked for permission to return to his village . He explained that he was unable to sustain the living of his family in the city and that he wanted to cultivate his lands in the village . The District Governor transmitted the applicant 's request to ORG and also advised him to apply to ORG . The applicant went to see the commander of the aforementioned station and told him that he had been advised to address him by the District Commander . The latter refused the applicant 's request to re - settle in the village and ordered a gendarme to remove the applicant from the LOC .

The applicant left GPE village of his own free will and not under any pressure by the ORG security forces or village guards .

On DATE the applicant petitioned ORG office complaining that the village guards from GPE had been using his property without his consent . The applicant alleged that he had moved out of his village on account of terrorism in DATE . Subsequent to his departure the village guards had demolished his house and had removed its wooden parts and the stones . They had also cut down CARDINAL poplar trees in his field . The applicant therefore asked the Prosecutor to initiate criminal proceedings against the village guards and to ensure that the damage resulting from the alleged events be compensated .

On DATE ORG took statements from PERSON , who transported the applicant 's household property in his vehicle . He stated that in DATE he transported the applicant 's belongings from GPE to ORG district and that the applicant 's house was intact .

On DATE the applicant filed another petition with ORG office complaining that ORG , who was CARDINAL of the village guards in GPE , had been illegally cultivating his father 's land .

On DATE ORG issued a decision of non - jurisdiction and referred the case - file to ORG in accordance with ORG . An investigation was carried out by an inspector , appointed by ORG , into the applicant 's allegations . In this regard , CARDINAL village guards , including GPE , were questioned by the inspector .

On DATE , ORG dismissed a request for leave to initiate criminal proceedings against the CARDINAL village guards from GPE .

By a decision of CARDINAL DATE ORG set aside ORG decision and authorised the institution of criminal proceedings against the village guards for alleged destruction of the applicant 's property , which offence was prescribed in LAW .

On DATE the ORG heard evidence from the accused village guards . The latter denied the charges and claimed that the applicant had slandered them . They alleged that the applicant was a member of the mountain squad of the ORG and that therefore he was hostile to them because they were village guards . They also noted that the applicant did not own QUANTITY trees and CARDINAL dönüm land in the village . The trees belonged to the applicant 's brother who had cut and sold them and then moved to GPE .

On DATE CARDINAL gendarme officers took statements from CARDINAL persons , namely ORG , PERSON and GPE , from GPE . The villagers stated that they had seen the applicant when he moved from GPE to ORG and that the village guards had not forced him to move out of the village . They also submitted that the applicant 's house had not been burned down by the village guards but had been demolished as a result of bad weather conditions and lack of care . They also noted that the applicant possessed CARDINAL or QUANTITY of land which could not contain QUANTITY poplar trees .

On DATE , the gendarme officers carried out an on - site inspection on the premises of the applicant 's house in GPE . They drew up a report in which they observed that there was no evidence that the house had been burned down . It appeared that the house had been demolished as a result of natural forces and lack of care . It was also noted that the applicant owned land measuring QUANTITY which could not contain the number of trees allegedly owned by the applicant . They further observed that the applicant had already cut CARDINAL of his trees before moving to ORG . The gendarme officers also drew up a sketch - map of the village .

On DATE ORG decided to defer the criminal proceedings against the village guards for DATE in accordance with LAW . DATE on Conditional Release , Deferral of Criminal Proceedings and Sentences . In the absence of any appeal , this judgment became final . However , this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within DATE time .

On DATE gendarme officers took statements from the applicant and CARDINAL inhabitants of GPE in relation to the allegations made by the applicant in his application lodged with ORG .

The applicant stated that in DATE he had moved out of GPE due to the intimidation by the village guards and that , DATE or DATE after his departure , his house had been burned down by some of the villagers whose identity he did not know nor why they did so . In response to a question whether the ORG authorities forced him to agree to become a village guard , the applicant stated that no one had exerted pressure on him or his family . The applicant further stated that the allegation that the houses of those who did not agree to become village guards were burned down was untrue . When asked about the number of trees he owned , the applicant claimed that he owned - together with his brother and cousin - CARDINAL poplar trees , and not CARDINAL . The applicant also stated that he possessed land measuring CARDINAL dönüm together with his brother and cousin and that he had not cultivated this land since DATE . In reply to a question whether he and his family had been affected by the terrorism in the region , the applicant stated that his son PERSON had been an active member of the ORG , that he had served a DATE prison sentence following his arrest and conviction and that therefore the ORG had not intimidated his family . Given that his wife 's father had worked at the same time as a village guard , the ORG security forces had not intimidated his family either . The applicant finally noted that he had lived in GPE DATE and that , since DATE , he had been living in PERSON hamlet , cultivating his lands .

The applicant 's fellow villagers , GPE , GPE and GPE stated that the authorities had not forced the villagers to agree to become village guards but , on the contrary , the villagers themselves had wished to become village guards since they would receive salaries from the ORG . However , some of the villagers , including the applicant and his family , had left the village on account of economic difficulties . In their opinion , the applicant had left the village because his son had joined the ORG and his brother had also moved out of the village earlier . The allegation that the applicant 's house had been burned down by the village guards was untrue since the applicant 's father - in - law was one of the village guards and he would not set his daughter 's house on fire . The applicant 's house had been demolished as a result of bad weather conditions and lack of care . The applicant could not own CARDINAL poplar trees given that the total number of trees in the village did not equal this number . The applicant possessed CARDINAL dönüm of land together with his brothers . In DATE he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands . Nobody had forced the applicant to leave the village . In the opinion of these witnesses , the applicant and a few other villagers had made such allegations in the hope that they would obtain some money .

Finally the Government pointed out that on DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection , Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already reached CARDINAL . Many villagers had already been awarded compensation for the damage they had sustained .

A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) , PERSON v. GPE ( no . GPE , § § DATE , DATE ) and PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG , § § CARDINAL , ORG CARDINAL- ... ) .