Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

NORP In DATE the applicant appeared as defence counsel in ORG ( raastuvanoikeus , rådstuvurätt ) in CARDINAL sets of criminal proceedings against her client PERSON and others . The applicant acted as counsel under the DATE LAW ( laki maksuttomasta oikeudenkäynnistä , lag om DATE rättegång CARDINAL ) with ORG consent .

In the DATE trial the public prosecutor , ORG , requested that PERSON , his brother PERSON and GPE be temporarily barred from conducting business ( liiketoimintakielto , näringsförbud ) . The request had been triggered by the winding up of various companies which the defendants had owned or in which they had held positions of trust . At a hearing on DATE ORG argued , inter alia , that regardless of whether ORG had actually participated in the administration of the companies , he should be barred from conducting business , given his formal membership of their boards of directors . Evidence was heard from the companies ' bookkeeper , GPE , who was one of the witnesses . Those proceedings ended with a decision of DATE rendered by ORG ( korkein oikeus , högsta domstolen ) .

In the meantime , GPE , FAC , GPE and GPE had been questioned as suspects in relation to a complaint lodged by PERSON ( the wife of ORG ) alleging that they had , among other things , abused their positions of trust within one of the companies . On DATE T. decided not to bring charges against ORG , having found no evidence that he had participated in any meeting of the board at which the funds invested by the complainant had been allocated for purposes to which she had not agreed , or that FAC had otherwise consented to such allocation .

On DATE PERSON was charged with aiding and abetting fraud and abusing a position of trust . GPE was accused , inter alia , of aggravated fraud and fraud , whereas GPE was charged with abusing a position of trust . The public prosecutor , ORG , had summoned ORG to testify but the applicant and the other defence counsel objected to this on behalf of their clients . Before ORG the applicant read out and handed in a memorial entitled “ Role manipulation and unlawful presentation of evidence ” ( in NORP , “ PERSON ja kiellonvastainen todistelu ” ) in which , among other arguments , she made the following points :

“ ... The indictment seeks to hide the fact that S.S. ... was ... chairman of the board of the company in question . ...

The blatant abuse in respect of the presentation of evidence must lead the court to reject such evidence . ...

The prosecutor 's arrangement shows that he seeks , by means of procedural tactics , to make a witness out of a co - accused so as to support the indictment . In order to prevent the accused from submitting evidence on those points the prosecutor has , in the same case , brought trumped - up charges against a person who would qualify as a witness . ... Such deliberate abuse of discretion on the part of a public authority is highly unusual in a ORG governed by the rule of law .

As regards , in particular , the procedural tactics which the prosecutor has adopted in the present case , namely CARDINAL instances of role manipulation in one and the same case , I submit that a milder form of such manipulation has been condemned by ORG . That precedent disclosed unlawful behaviour similar to that of the prosecutor in the present case ...

The prosecutor has , in this case , committed role manipulation , thereby breaching his official duties and jeopardising legal security ... ”

T. having denied the above allegations and maintained his request , ORG rejected the objection of the defence and allowed ORG to testify . On DATE the defendants were convicted . GPE and GPE were given suspended prison sentences and fines , and GPE sentenced to fines . They were all ordered to pay damages and costs . All appealed , GPE and GPE arguing , inter alia , that ORG should not have been heard as a witness .

NORP In its judgment of DATE ORG ( hovioikeus , hovrätt ) upheld the decision to hear FAC as a witness but acquitted GPE and GPE of the charges regarding abuse of a position of trust . They were nonetheless ordered to pay damages to the complainant .

GPE and PERSON requested leave to appeal to ORG . Having been invited to comment on ORG 's request , the applicant maintained on behalf of GPE that FAC should not have been heard as a witness . Leave to appeal was granted to GPE only . In its decision of CARDINAL DATE ORG set aside the order requiring GPE to pay damages .

T. reported the applicant 's statements of CARDINAL DATE to ORG ( kanneviskaali , hovrättsfiskalen ) of ORG for consideration of possible defamation charges . On DATE the Acting Prosecuting Counsel formed the view that the applicant had been guilty of defamation but decided not to indict her , since the offence had been of a minor character . The Acting Prosecuting Counsel gave the following reasons , among others :

“ The defamation now in question can not be expected to result in a more severe punishment than a fine .

[ The applicant ] made her aforementioned ... submission in order to prevent the examination of [ ORG ] as witness . By acting in this manner [ the applicant ] attempted to defend her client 's interests in the trial . ... In her submission [ she ] attempted , perhaps in part due to her inexperience , to place ... the case before ORG in the context of the ... NORP precedent and its formulations . The submission was thereby worded quite sharply with the effect of offending T. ... , although [ the applicant ] was not able to show the requisite factual grounds for the allegations concerning [ T. ]

At the same hearing ... ORG found no obstacles to examining [ S.S. ] as a witness . In its reasons ORG noted that no elements had transpired from the pre - trial record or other material on the basis of which the prosecutor could be seen as having deliberately selected certain persons as the accused in the case . The ... ORG did not reverse [ that ] decision of ORG . In the circumstances the [ applicant 's offence ] has not caused any particularly significant harm to [ T. ] ... ”

Using his independent right of private prosecution , ORG nevertheless brought criminal proceedings against the applicant in ORG . Before ORG the applicant argued that , as defence counsel , she had to be afforded far - reaching freedom of expression . Prosecutors and legal counsel were obliged to tolerate criticism to a much wider extent than private individuals . The applicant 's statements had been addressed exclusively to ORG and had been limited to criticising the procedure which ORG , as prosecutor , had adopted in her client 's case . As ORG had dismissed the applicant 's objection to hearing ORG as a witness , the statements could not qualify as defamatory within the meaning of LAW , LAW , of LAW ( rikoslaki , strafflag ) .

T. argued that the applicant 's statements to ORG on DATE were capable of subjecting him to contempt and hampering the performance of his professional duties and his career . He referred to his lengthy service as public prosecutor , to his municipal position of trust and to his chairmanship of the local branch of a political party .

On DATE ORG convicted the applicant of public defamation committed “ without better knowledge ” ( julkinen ei vastoin parempaa tietoa tehty herjaus , offentlig smädelse dock inte emot bättre vetande ) , i.e. negligent defamation , to be distinguished from public defamation “ despite better knowledge ” , that is to say , intentionally imputing an offence to T. whilst knowing that he had not committed it ( rather than voicing a mere suspicion that he had ) . The applicant was sentenced to a fine of CARDINAL markkas ( FIM ) ( MONEY ( ORG ) ) . She was further ordered to pay ORG CARDINAL,CARDINAL ( FAC ) in damages for the harm suffered by T. and FIM CARDINAL ( EUR CARDINAL ) for his costs ( both sums with PERCENT interest ) . Lastly , she was ordered to pay ORG CARDINAL ( EUR CARDINAL ) in costs to the ORG . ORG gave the following reasons , among others :

“ The obligation of an advocate is to safeguard his or her client 's interests within the confines of the law and good advocacy ethics . The requirements relating to an advocate 's activities appear in rather general provisions and rules . According to generally recognised principles , an accused must be provided with all necessary guarantees for his or her defence . Similarly , an advocate may request that every aspect of his or her client 's case be correctly and properly dealt with by the court . [ Counsel ] is under a duty to point out the errors and deficiencies which he or she notices . To this end an advocate is free to criticise anything of relevance to the case . Such criticism must nonetheless be appropriate and based on facts . The grounds for the criticism must be carefully considered . ... The manner in which an advocate proceeds is also limited , inter alia by the provisions in LAW of LAW .

In the [ present ] case it has been established that [ the applicant ] alleged , in her aforementioned written submission , that [ T. ] had , in assessing who should be charged in the case , deliberately abused his discretion and thereby breached his official duties .

T. was thus accused of an intentional offence in office within the meaning of LAW , LAW , of LAW . [ The applicant 's ] conduct would ... constitute a criminal offence if her statements were capable of subjecting [ T. ] to contempt or of hampering the performance of his duties or career . On this point ORG notes that the statement was made by a legal practitioner trained as a judge ( varatuomari , vicehäradshövding ) . The statements were made at a public hearing before ORG . The statement may thus have spread into the public domain . The statements concerning the ... abuse of discretion in breach of official duties may therefore have subjected [ T. ] to contempt or may have hampered the performance of his duties or his career progress .

[ T. ] had decided not to bring charges against [ ORG ] in the absence of evidence sufficient for an indictment . ORG notes that no elements have transpired which would lead [ it ] to believe that [ ORG 's ] aforementioned decision was not based on the appropriate reasons set out in the decision . In its decision made at the same hearing ... ORG found no obstacle to examining [ S.S. ] as witness . In its judgment of DATE the ... ORG did not reverse ORG decision .

On the basis of the charges which [ T. ] brought against [ GPE ] ORG convicted [ him ] of having abused a position of trust . In its aforementioned judgment ORG ... acquitted [ GPE ] but upheld ORG decision in respect of his obligation to pay damages . ORG notes that in this respect no elements have transpired which would lead [ it ] to believe that [ T. ] decided to bring charges against [ GPE ] so as to prevent his being examined as a witness .

[ The behaviour imputed to T. ] has not been proved .

There is no reason to believe that [ the applicant ] acted with intent ... , although she did express her criticism in a manner defaming [ T. ] . In order to defend her client 's interests [ the applicant ] attempted to prevent [ ORG ] from being heard as a witness and to put forward elements relating to his credibility . [ The applicant ] was in principle entitled to criticise the public prosecutor and to voice her suspicion that the prosecutor had acted incorrectly . In the assessment of [ the applicant 's ] guilt no reason has been disclosed for reaching any conclusion other than that she failed to take sufficient care in considering the grounds for her criticism . ORG therefore concludes that [ the applicant ] did not act contrary to her better knowledge . [ She ] must have realised , however , that her statements were defamatory in nature and were capable of subjecting [ T. ] to contempt or of hampering the exercise of his official duties or career . ... ”

Both PERSON and the applicant appealed to ORG . On DATE ( Korkein oikeus CARDINAL:CARDINAL ) ORG , sitting as a ORG of CARDINAL judges with Justice Tulenheimo - Takki holding a casting vote , upheld ORG reasons but set aside the applicant 's sentence , considering that her offence had been minor in nature . Accordingly , the fine imposed on her was lifted but her obligation to pay damages and costs was upheld . Justices PERSON and ORG voted in favour of upholding ORG judgment as a whole , whereas Justices GPE and GPE found that the applicant should be acquitted and relieved of her obligation to pay damages . According to the voting procedure laid down in LAW , DATE , of LAW ( PERSON , PERSON Balk ) , the judges in favour of imposing a penalty on the applicant were considered to form the majority , and the more lenient of the CARDINAL views within that majority prevailed . Justice GPE , whose opinion was joined by PERSON , reasoned as follows :

“ This case concerns , on the one hand , the freedom of speech of the defence lawyer of an accused in criminal proceedings and , on the other hand , the threshold for considering criticism of a public prosecutor 's official actions a criminal offence .

It is in the nature of a fair trial that counsel for the defence must , if the client 's best interests so require , be free to criticise the public prosecutor 's official actions without thereby being threatened with punishment . This is considered to be an essential principle of human rights in the NORP countries where the rule of law prevails . The ... principle [ becomes devoid of meaning ] if defence counsel 's freedom of expression is excessively restricted in such a situation . Legal provisions which restrict this freedom of expression must therefore be interpreted narrowly . Correspondingly , one can expect a public prosecutor to tolerate even sharp criticism of his or her official actions at a public hearing . This is due to the specific nature of the post of public prosecutor .

The act imputed [ to the applicant ]

On the basis of ORG reasoning , I consider that [ the applicant ] did not have any intention to offend [ T. ] or to act contrary to her better knowledge . The question ... is therefore whether [ she ] is guilty of the defamation imputed to her by ORG .

In the trial in question [ the applicant ] considered the interests of her client to require that the [ prosecution witness ] be disqualified from testifying against his brother . To this end [ the applicant ] stated her suspicion that [ T. ] , in considering whether to press charges , had been guilty of ... role manipulation . [ The applicant ] considered it necessary to stress , in particular , that such action was , in her opinion , incompatible with NORP law and therefore in breach of the ... duties of the prosecutor . As her client 's defence counsel , [ the applicant ] had a right to express such opinions and , as a public prosecutor , [ T. ] was obliged to tolerate such criticism . As a party to the proceedings , [ T. ] had an opportunity to respond to [ the applicant 's ] statements and dismiss the opposing party 's suspicions if he regarded them as groundless .

On the other hand , there was no need for [ the applicant ] , in her capacity as defence counsel , to state her opinion as to whether [ T. ] had possibly committed an offence in office by acting in the alleged manner ... In this respect I consider [ the applicant 's ] statements inappropriate .

Constitutive elements of defamation

But did [ the applicant ] commit defamation ? Is it enough for the fulfilment of the elements in LAW , LAW , of LAW , to allege that someone is ' guilty of a specific offence ' in the circumstances mentioned in this provision - or is it also required that the alleged offence is capable of subjecting the said person ' to contempt or harming his professional life or career ' ? The provision is linguistically open to various interpretations . ORG has applied the interpretation which is more favourable to the accused by finding that [ her ] conduct would constitute a criminal offence [ only ] if her statements were capable of subjecting [ T. ] to contempt or of harming his professional life or career . I agree with ORG interpretation .

Considering the broad definition of this offence , it is not reasonable to consider that any allegation of an offence would suffice to cause ... the injurious consequences mentioned in this provision . In order for the definition of defamation to be satisfied evidence is therefore also required in a given case that ... the allegation ... of an offence did produce an injurious consequence .

Assessment of the injurious character of the allegation of an offence

It is common knowledge that the role of an accused person 's defence counsel includes criticising the prosecutor 's decision to bring charges ... This is almost a rule , especially when the charges against counsel 's client are denied . It is also known that the language used by counsel may be sharp and counsel 's view particularly subjective . The public present at a trial are therefore usually able to adopt a prudent attitude towards the criticism to which the parties subject each other . Neither is all criticism likely to be taken literally even if those who have presented it are legally trained .

As regards [ T. 's ] alleged role manipulation as such , [ the applicant ] did not state that [ T. ] had done something he had not done . Instead , she questioned the appropriateness of [ his ] decisions ... [ The applicant ] alleged that the actual purpose of [ ORG 's ] actions had not corresponded to the stated grounds for the actions . On that basis [ the applicant ] made known that she considered [ T. 's ] official actions unlawful and purposely harmful to her client . Despite their unconditional tone and formulation [ the applicant 's ] statements could be understood more or less as [ her ] own doubts as to the reasons why [ T. ] had acted the way he did .

Conclusion

In the light of the above - mentioned considerations , I do not consider that [ the applicant 's ] allegation that [ T. ] had committed an offence in office was capable of subjecting [ him ] to contempt or of harming his professional life or career within the meaning of LAW , LAW , of LAW . Therefore I consider it not proved that [ the applicant ] committed defamation ... I would quash ORG judgment and dismiss the charges and compensation claims against [ the applicant ] .

Costs

In so far as court costs are concerned , I consider , despite the outcome of the case , that [ the applicant ] , given the inappropriate tone of her remarks , gave cause for [ T. ] to initiate proceedings against her . Considering the facts , I nonetheless find ... that both parties should bear their own costs . ”

According to LAW , LAW , of LAW , as in force at the relevant time , a person alleging , albeit not contrary to his or her better knowledge , that someone had committed an offence was to be convicted of defamation , unless he or she could show probable cause in support of the allegation .

NORP The current LAW , LAW , of LAW , as amended by LAW no . CARDINAL/CARDINAL , provides that where criticism is aimed at the conduct of another person in his or her political or business activity , public office or function , scientific , artistic or other comparable public activity , and where this criticism clearly does not exceed the limits of acceptable conduct , it shall not be considered defamation within the meaning of paragraph CARDINAL .

According to LAW , Article CARDINAL , of LAW , the court may order that an unsuitable legal representative should no longer appear in the case before it . The court may also , on similar grounds , revoke the appointment of counsel instructed under the legal - aid scheme ( section CARDINAL of LAW ) .

The intervener concluded from its survey of a number of member ORG i.e. GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) as well as of certain other GPE ( GPE , GPE and GPE ) that a great majority of them accord a privilege to lawyers for statements they make while representing clients in court . Although the extent and application of such privilege may differ from jurisdiction to jurisdiction , every surveyed ORG recognises that a lawyer 's ability to express himself or herself is closely linked to counsel 's obligation to defend the client . The privilege for allegedly defamatory statements allows counsel to argue as effectively as possible , relying even on facts which they can not be sure are true . For example , in the GPE allegations that the prosecutor has abused his or her discretion are regularly made by defence lawyers . Potentially relevant allegations which are entirely unsubstantiated are simply disregarded .

To the extent that restrictions are permitted on a lawyer 's statements in court , most of the jurisdictions surveyed by ORG tend to favour the use of disciplinary measures over criminal sanctions . In the view of the intervener , this might reflect the position taken by ORG in the context of LAW , namely that a relatively light criminal sanction may already serve to chill even appropriate and measured criticism ( see , for example , the PERSON v. GPE , judgment of DATE , Series A no . CARDINAL ) .

Where criminal sanctions are permitted in theory , in most of the jurisdictions surveyed by the intervener they are rarely used in practice , and then usually only in extreme circumstances and provided that intent can be shown , as opposed to mere negligence . Even where a lawyer 's statements may in principle be subject to restrictions , those are generally imposed only when the statement is not only defamatory but also entirely unrelated to the proceedings or the parties .

Furthermore , almost all of the jurisdictions surveyed by the intervener recognise the fundamental difference between the roles of the prosecutor , being the opponent of the accused , and the judge . This distinction generally provides an increased protection for statements that are critical of the prosecutor .

It is the intervener 's conclusion that in most of the surveyed jurisdictions it is unlikely that a defence lawyer would be criminally prosecuted for having criticised the manner in which a prosecutor is handling a case or for having indicated that the prosecutor has abused his or her discretion . On such facts recourse to criminal proceedings would not be deemed necessary .

According to paragraph CARDINAL of ORG adopted in DATE by ORG on ORG and the Treatment of Offenders ) , lawyers should enjoy “ civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court , tribunal or other legal or administrative authority ” .

In its Recommendation ( DATE ) CARDINAL ORG recommends the governments of Member States to take or reinforce , as the case may be , all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer . For instance , “ lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards ” . Lawyers should , however , “ respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards ” ( principles I:CARDINAL and III:CARDINAL ) .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in FAC . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON P. ORG in that function .

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

The applicant is registered as the father of a child to whom his former wife gave birth on DATE .

On DATE the applicant commenced divorce proceedings . In the action the applicant stated that he and his wife had had no sexual intercourse for DATE .

As he considered that he was not the natural father of the child , the applicant requested , inter alia on DATE , that an action under LAW ) of LAW ( see “ Relevant domestic law and practice ” below ) be filed with a view to having this issue determined . In the request the applicant stated that he had had no sexual intercourse with his former wife and that the latter had a friend with whom she had met at the relevant time .

A blood test was arranged . However , it was not carried out as the applicant had not paid the costs .

In DATE , a public prosecutor arranged for another blood test of the applicant and of his former wife , as well as of the child . In a report of CARDINAL DATE an expert found that the blood analysis did not exclude that the applicant was the natural father of the child . The expert further expressed the view that it was most probable that the applicant had fathered the child .

On DATE ORG in PERSON informed the applicant , with reference to the expert ’s conclusion , that an action under LAW ) of LAW could not be filed in his case as it had not been shown , in an objective manner , that the applicant was not the natural father of the child .

On DATE and on CARDINAL DATE the applicant filed a complaint with ORG . He argued that the probative value of the above blood test was low and asked that a DNA test be carried out . The applicant explained that the latter test was capable of reliably showing whether or not he had fathered the child . He requested that another person whom he considered to be the natural father of the child should also undergo the test .

On DATE ORG dismissed the applicant ’s complaints . The applicant was informed that the child ’s mother was opposed to further examination by experts as the child had fainted in the course of the first examination , and that she was not willing to bear the costs of such an examination . The letter further stated that public prosecutors lacked power to order the mother to undergo further examination and to bear its costs . Finally , the applicant was informed that his further submissions in this matter would not be dealt with unless they contained relevant new information .

On DATE the applicant sent a letter to ORG which he entitled “ Attempt to reach a settlement ” . He challenged the viewpoint expressed in the above letter of DATE . He argued , in particular , that a DNA test involved no risk , that he was ready to cover its costs , and reiterated his request that such a test be carried out in his case . The applicant received no reply .

Pursuant to Section CARDINAL(CARDINAL ) of LAW , the husband of a woman who gives birth to a child during the marriage or not DATE after its dissolution shall be considered the child ’s father .

Section ORG ) provides that a husband can deny paternity before a court within DATE after learning that his wife gave birth to a child .

Under LAW ) , when the time - limit for denying paternity has expired , ORG may file an action to disprove paternity provided that the determination of the issue is justified by the interests of society .

According to the practice of the public prosecutors , an action under LAW ) of LAW can only be filed when reliable proof exists that the mother ’s husband did not father the child .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE FAC , the first applicant ’s husband and the second applicant ’s father , died in a traffic accident .

On DATE the applicants brought a civil action against the insurance company ORG with ORG ( PERSON ) seeking damages .

ORG held hearings on DATE and DATE , CARDINAL May , DATE and DATE and DATE .

On DATE and DATE the applicants filed CARDINAL rush notes requesting the court to schedule a hearing and deliver a decision .

The hearings scheduled for CARDINAL DATE and DATE were adjourned due to the illness of the judge . The hearings scheduled for DATE and DATE were adjourned for absence of the summoned witnesses . At the hearing held on DATE the court heard those witnesses .

On DATE ORG closed the main hearing and gave judgment dismissing the applicants’ claim . The judgment was served on the applicants on DATE .

On DATE the applicants appealed to ORG ( Županijski sud u GPE ) .

On DATE ORG quashed the first - instance judgment and remitted the case . The decision was served on the applicants on DATE .

In the resumed proceedings , ORG held hearings on DATE , DATE and DATE .

The Government submitted that the court also had held a hearing on DATE . According to the applicants that hearing never took place .

It appears that the proceedings are still pending before ORG .

Meanwhile , in DATE the applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining about the length of the proceedings .

On DATE ORG declared the ORG complaint inadmissible , since ORG had given its judgment in the case while the complaint had been pending before ORG .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”


NORP In DATE the applicant participated in a protest campaign against the stationing of interceptor fighter planes ( Abfangjäger ) near FAC . In the course of a police action , Police Officer PERSON charged the applicant with having scratched his right arm , and he subsequently requested that the applicant be prosecuted for having caused grievous bodily harm ( schwere ORG ) . In DATE ORG ) informed the applicant that the investigation proceedings against him had been discontinued .

On DATE the “ PERSON ” , issued in GPE , published the following article , under the title “ ORG politician and member of ORG injured civil servant / Request for him to be handed over on account of the risk of infection ” and with the headline “ Police Officer claims : AIDS test for PERSON ! ” . The article read as follows :

“ Dramatic contribution to the debate on the privilege of members of ORG : Police Officer PERSON ( DATE ) from Aflenz not only requests that ORG politician and member of ORG PERSON be handed over , but also that the member of ORG - who is immune because of privileges , be subjected to an AIDS - test . Reason : PERSON scratched PERSON and drew blood .

' I do n't dare to touch my wife and I ca n't even kiss my children ' - Since he has been involved in a police action against the opponents of the [ planes ] the family life of Police Officer PERSON is ruined . The fear of the immune deficiency syndrome paralyses the social relations and the sexual life of the father of CARDINAL .

The explosive background : On DATE , shortly after the [ planes ] had been stationed , ORG , a senior ORG , participated in a police action in the area of a camp of opponents of the [ planes ] at FAC . On this occasion , ' friction ' developed between the demonstrators and the police . The result of an altercation between ORG and the Green politician PERSON was CARDINAL bleeding scratches , CARDINAL , the other QUANTITY long , to ORG 's right lower arm . CARDINAL witnesses and the local medical officer confirmed the injuries .

ORG does not claim that the immune member of ORG is suffering from the immune deficiency syndrome , but , as the ORG told the ' PERSON ' : ' The member of ORG had been in contact with the other demonstrators and they were not particularly clean . ' Criminal proceedings against PERSON on a charge of causing bodily injury have been discontinued on the ground of the triviality of the injury . PERSON nevertheless requests that the member of ORG be handed over .

' Mr. PERSON has to undergo an AIDS - test , as he might have infected me ' , states ORG and thereby asks the PERSON ' scratcher ' to have a blood sample taken for the purposes of an immune deficiency syndrome test . PERSON 's victim also intends to claim compensation for moral damages . As regards his claims for compensation , ORG is represented by the PERSON lawyer PERSON , who is known to be close to the opponents of the [ planes ] and not to the authorities who guard the [ planes ] . ”

This article , reproduced on pages CARDINAL and CARDINAL of the newspaper , was accompanied by a photograph showing the applicant and QUANTITY police officers with the sub - title “ AIDS - test for the privileged member of ORG ? PERSON ( centre ) in an altercation with the police . ”

The article was announced on the front page as follows :

“ Green politician PERSON should have an AIDS test .

The Police Officer PERSON from GPE asks Green member of ORG to undergo an AIDS - test . PERSON scratched PERSON and drew blood in the course of an altercation ( pages CARDINAL ) . ”

The applicant requested the author of the article in question , who had not contacted him prior to its publication , to publish a rectification as well as a statement drafted by the applicant .

The text of this statement , published in ORG on CARDINAL DATE , read as follows :

“ In the context of the report on ORG 's request for an AIDS - test , the ' PERSON ' wishes to clarify that , when mentioning the disease AIDS , it never intended to defame , for personal or political reasons , the member of ORG PERSON . We wish to apologise for any gross claims which were not appropriate to our standards of fairness and our reputation as journalists . ”

NORP This statement was printed as an annex to an article with the headline " Defamation of Green politician not intended / hygiene expert PERSON reassures : ' No AIDS - infection from scratches ! ' " , with the following text :

“ On DATE , the PERSON ' hygiene - king ' , university professor PERSON , reassured the Police Officer PERSON from GPE , who feared an infection with AIDS from scratches which were allegedly inflicted on him by Green member of ORG . PERSON : ' AIDS can not be caught from scratches . '

PERSON , President of ORG , informed the ' PERSON ' : ' Nobody has anything to fear from a simple scratch . Infection is impossible . ' The Head of the Graz Institute for Hygiene declared his immediate willingness to ' hold at any time an explanatory talk ' with the senior Police Inspector and his family .

As reported PERSON feared that he had been infected with the AIDS virus by CARDINAL scratches to his right lower arm , which were inflicted on him in the course of an altercation with the Green member of ORG PERSON . Criminal proceedings on a charges of causing bodily harm ( superficial reddening ) have been discontinued by ORG on the ground that the factual elements of the offence were not present . ”

The article further referred to the applicant 's claims that the matter was a political campaign intending to bring him into disrepute .

Also on CARDINAL DATE the applicant , on the occasion of a press conference , commented on the events of DATE and in particular the above articles of CARDINAL and CARDINAL DATE . He informed the press of his opinion regarding the background to the events which he considered to be a " political character assassination " ( " politischer Rufmord " ) . When asked by a journalist how he felt about the above events , the applicant replied as follows :

“ This is NORP - journalism . ”

This statement was quoted in the NORP media .

On DATE the company publishing the newspaper “ ORG ” brought injunction proceedings under section CARDINAL of LAW ( ORG ) against the applicant with ORG ( PERSON für PERSON ) . It requested that the applicant be prohibited from repeating the statement according to which the contents of the “ PERSON - Zeitung ” were “ NORP - journalism ” and to arrange for a rectification .

In the context of private prosecution proceedings instituted by the applicant in respect of the article of CARDINAL DATE , ORG ( PERSON für PERSON ) , as confirmed by ORG ( Oberlandesgericht ) on DATE , convicted the company publishing the “ PERSON - Zeitung ” of defamation , pursuant to LAW ( Mediengesetz ) , and ordered it to pay compensation to the applicant .

On DATE the ORG dismissed the injunction claim . The Court observed that section CARDINAL of LAW envisaged an injunction in respect of any statement of facts which jeopardised someone 's reputation , income or livelihood , the untruth of which was known or must have been known . Considering all circumstances , and in particular the background of the press conference and the impugned statement , the ORG found that the applicant had used the expression “ NORP - journalism ” as a value - judgment . The ORG based its decision on the statements made by the applicant and various witnesses , as well as on an expert opinion regarding the interpretation of the expression “ NORP - journalism ” .

On DATE ORG dismissed the plaintiff 's appeal ( GPE ) . ORG confirmed the findings of the first instance court that the impugned statement was a value - judgment . Furthermore , even assuming that the impugned statement was an untrue statement of fact , the plaintiff had failed to show that the applicant had known or should have known that this statement was untrue . In this respect , ORG referred to the expert opinion according to which the defamation of political opponents with an alleged illness was an essential element of the journalism under the NORP regime . Furthermore , even assuming that the impugned statement amounted to an insult , it was justified as a reaction to the plaintiff 's previous publication on the applicant .

On DATE ORG ( Oberster Gerichtshof ) , upon the plaintiff 's further appeal ( außerordentliche Revision ) , reversed ORG decision and issued an injunction against the applicant prohibiting him from repeating the statement that the article of CARDINAL DATE amounted to “ NORP - journalism ” , and similar statements .

According to ORG , section CARDINAL LAW presupposed facts , i.e. circumstances , the existence of which could be demonstrated . If a value - judgment was based on particular facts it comprised a statement of facts . The question whether or not “ facts ” had been disseminated had to be examined against the general context of the impugned statement , as understood by the man in the street . In this respect the interpretation least favourable to the offender had to be placed on the statement . Objective criticism presupposed that the value - judgment corresponded to unchallenged or proven facts . ORG further observed that , under section CARDINAL LAW , the plaintiff had to prove that the discrediting statement was untrue , unless the statement also amounted to an insult ; in the latter case , the offender had to prove the truth of the statement concerned . The question whether or not a statement constituted an unlawful interference with a person 's reputation could only be assessed by balancing all relevant circumstances .

ORG found that the applicant 's reproach of “ NORP - journalism ” had concerned an article published by the plaintiff , and had arisen on the occasion of a press conference concerning the plaintiff 's defamatory report about the applicant . The impugned statement had been an answer to a question put by CARDINAL of the journalists , and , in the circumstances , the ORG had no doubt that this statement only related to the particular article of CARDINAL DATE . In this context , the applicant 's statement was a value - judgment . In any event , there was no indication as to how the journalist had understood the applicant 's reproach “ NORP - journalism ” .

ORG considered further whether this value - judgment fell within the scope of section CARDINAL § CARDINAL of LAW . The plaintiff could claim an injunction under this provision if , considering all circumstances , the plaintiff 's interests were not less important than the applicant 's . ORG found that the plaintiff had an interest not to be associated with ORG . The reproach “ NORP - journalism ” was close to a charge of criminal behaviour under LAW ( GPE ) . ORG also noted that the applicant 's statement was a reaction to an article published by the plaintiff which contained the assumption that the applicant was suffering from the immune deficiency syndrome , i.e. a contagious disease , which provokes fear and antipathy amongst the majority of the population . His indignation about the defamatory reporting might appear understandable but could not justify the reproach that the plaintiff 's way of reporting came close to criminal behaviour , in particular as he himself could have brought proceedings under section CARDINAL of LAW against the plaintiff . Balancing all circumstances , ORG concluded that the applicant 's interests did not outweigh the plaintiff 's . The right to freedom of expression could not justify such a serious attack on the plaintiff 's reputation . For the same reasons , the impugned statement could not be regarded as permissible political criticism , which is supposed to provoke or shock . ORG also noted that , having regard to the applicant 's submissions in the course of the proceedings , there was a risk that he would repeat the statement in question .

NORP This decision was served on the applicant 's counsel on DATE .

Section CARDINAL of the NORP Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows :

“ ( CARDINAL ) Anybody who , due to defamation , suffers real damage or loss of profit , may claim compensation .

( CARDINAL ) The same applies if anyone is disseminating facts which jeopardise someone 's reputation , income or livelihood , the untruth of which was known or must have been known to him . In this case there is also a right to claim a revocation and the publication thereof ... ”

After the Second World War , GPE introduced legislation penalising activities inspired by ORG ideas , i.e. LAW ( GPE ) . In LAW ( Staatsvertrag ) of DATE , GPE confirmed its undertaking to prohibit any such activities .

The applicant applied to ORG DATE . He alleged that ORG judgment of DATE prohibiting him from repeating the reproach with “ NORP - journalism ” constituted a violation of LAW .

The Commission declared the application ( no . CARDINAL ) admissible on DATE . In its report of CARDINAL DATE ( former LAW ) , it expressed by a majority the opinion that there had been no violation of LAW .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1-c;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in DATE and lives in PERSON .

In DATE ORG of GPE ( ARC ) instituted criminal proceedings against several police officers , including the applicant , on charges of abuse of position .

On DATE the applicant was arrested in connection with these proceedings . In the course of the proceedings the applicant was detained in various detention facilities , including ORG ( “ the ORG ” ) , where he was held from CARDINAL DATE to DATE and from DATE to CARDINAL DATE .

On DATE the applicant was brought before ORG of PERSON ( the “ ORG ” ) which ordered that more information on the applicant be obtained to decide on his further detention . ORG also decided that , pending the collection of this information , the applicant ’s detention should be extended until DATE .

On DATE ORG extended the applicant ’s detention for DATE . It noted , in particular , that the applicant had been charged with numerous counts of abuse of position , connected to illtreatment of individuals and unlawful entry into residential LOC . Regard being had to the nature of the charges and to the applicant ’s official status , there was a high risk that he would engage in new criminal acts , put pressure on witnesses or obstruct the investigation in other ways .

On DATE ORG of the ARC ( “ the Court of Appeal ” ) upheld this decision .

On DATE , following a request by the ORG office , ORG extended the applicant ’s detention for DATE , noting that the investigation had still been unable to collect all the evidence , and that the applicant ’s personal situation had not changed .

On DATE ORG upheld this decision .

By DATE the investigation had been completed and the ORG office referred the case to the Chairman of ORG to determine which trial court would consider the applicant ’s case .

On DATE the applicant requested the governor of the detention facility to release him in view of the fact that the court order for his detention had expired . His request was refused , with reference to the fact that the pre - trial investigation was finished and the bill of indictment had been transferred to the judicial authorities .

On DATE the Chairman of ORG referred the case to ORG ( hereafter “ the ORG ” ) for trial .

On DATE ORG committed the applicant for trial . According to the Government , on the same date the court upheld the applicant ’s detention , having found no reasons to release him . According to the applicant , the court did not decide on the issue of extension of his detention on that date . The parties did not provide a copy of the relevant ORG decision .

On DATE ORG , having examined the case in the course of adversarial proceedings , in which the applicant was represented by an advocate of his choice , found the applicant guilty of several counts of abuse of authority and sentenced him to DATE and CARDINAL months’ imprisonment . The court also prohibited the applicant from occupying a law - enforcement post for DATE .

On DATE ORG upheld the judgment of DATE .

On DATE ORG dismissed a cassation appeal by the applicant as unsubstantiated .

From DATE to CARDINAL DATE and from DATE to CARDINAL DATE the applicant was held in ORG ( Temporary Detention Centre ) .

According to the applicant , during his stay in ORG he shared a QUANTITY cell with CARDINAL other detainees . The toilet and washstand in the cell were not separated from DATE . The cell had no windows , no table and no chairs , and the ventilation was unsatisfactory . For sleeping arrangements the cell had a wooden platform . Once every DATE the detainees were taken out for TIME exercise . At all other times they remained confined to their cells . Before he was detained , the applicant had been suffering from hypertension . While he was in detention his health worsened to the point that on CARDINAL occasions an ambulance had to be called .

On DATE ORG notified the applicant , in response to his complaints about the conditions of his detention , that disciplinary action had been taken against the ORG governor and CARDINAL officers for unspecified breaches of the law .

On DATE the ARC Department of ORG acknowledged to the applicant that ORG had not been properly equipped and that the detainees had been taken out for exercise only once every DATE because of the overcrowding of the ORG facilities . They noted that the ORG building had been constructed in DATE and had not undergone any capital renovations since that time . They also noted that the overcrowding of the ORG had been due to restrictions on the admission of detainees by the PERSON no . CARDINAL ORG ( GPE ) .

According to the ORG , ORG had CARDINAL cells , capable of accommodating CARDINAL inmates . All the cells were located in the basement and had no windows . However , the cells were well lit by electric light , enabling the detainees to read , equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platforms , tables , toilets and wash - stands . The detainees were provided with pillows and mattresses . While he was in detention , the applicant was provided with meals , time for outdoor exercise and access to washing facilities . On CARDINAL occasions ( CARDINAL and DATE ) an ambulance was called to examine the applicant at his request . He was diagnosed with a respiratory infection and hyperthermia and found not to need in - patient treatment . During his entire stay in ORG , the applicant was examined regularly by medical professionals and made no other health complaints except those mentioned above .

The relevant domestic law concerning pre - conviction detention can be found in the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , DATE ) .

The relevant international material concerning the conditions of detention is summarised in the judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § DATE , DATE ) .


The applicant , PERSON PERSON , is a NORP national . He is now detained in FAC of GPE , in GPE . He is represented before the ORG by Mr M.Shaw , professor of PERSON and barrister practising in GPE .

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

On DATE PERSON was found dead in the apartment where she lived with her husband . TIME her husband was arrested and charged with manslaughter . The applicant contended that his wife had committed suicide by throwing herself out of the second floor window on the pavement below . The police reported to the coroner that there was reasonable suspicion of violent death or death brought about by an unknown cause . The coroner instructed pathologists Professor PERSON and PERSON to carry out a post mortem examination of the body of the deceased . The examination was carried out on DATE by these pathologists in the presence of PERSON ( also a pathologist ) who was present as representative of the family of the deceased and as an observer in pursuance of a relevant order by the coroner . The pathologists concluded that a deep fracture of the scull and brain and the inhaling of a quantity of blood had led to the victim ’s suffocation . In particular , Professor PERSON noted that the victim had received blows in the neck which had distorted the vocal cords so that the victim was unable to scream . Moreover , the bleeding of the nose , the lips and the larynx brought about a huge bleeding of the respiratory system so that the victim could not be in a position to take the decision to fall from the window .

The coroner made an order for the immediate burial of the body .

PERSON had also carried out a review of the scene of the crime , at the request of the victim ’s family , in which he noted : “ Regarding the above spots and splashes of blood , it is the suggestion of the witness that they prove the manner in which the deceased fell from the second - floor window . In particular , the witness is of the opinion that the body was not ejected , as it happens in the ordinary cases of persons falling by their own will , but it fell after having come in touch with the front surface of the ledge under the window of flat n CARDINAL . ”

After the post - mortem examination of the body , PERSON concluded as follows : “ In the area of the throat and the respiratory system , the witness observed multiple bruises on the soft tissues in the area of the larynx , in the front and the sides . The appearance , the size and the position of the bruises suggested that they had been caused by the exertion of forceful pressure by human fingers . He also observed a suppressed total fracture of the right front gristle of the larynx . According to the witness , this fracture suggests the exertion of forceful pressure by the edge of a human thumb . ”

On DATE , the father of the victim filed an ex - parte application for ordering PERSON to carry out a second post mortem examination . On DATE , the coroner dismissed the application . On CARDINAL DATE upon request of the relatives of the victim and the oral authorisation of the Attorney General and the police , PERSON carried out a second post mortem examination of the body . The cause of death given by PERSON was strangulation .

On DATE the applicant was convicted by ORG of the offence charged and sentenced to DATE imprisonment . The applicant challenged the accuracy of the second post mortem examination . Dr Matsakis was exhaustively cross - examined and the defence called their own expert witness , a professor of forensic pathology at ORG . ORG evaluated both reports and decided to accept the evidence provided by PERSON by a reasoning covering CARDINAL pages of the judgment .

The applicant appealed on points of law to ORG .

On DATE ORG dismissed the applicant ’s appeal . It based its decision , inter alia , on the PERSON judgment of ORG .

ORG held that the second post mortem examination was illegal because , in the circumstances , it amounted to a breach of Section CARDINAL(CARDINAL ) of LAW and of the order to bury the body made thereunder .

ORG further held : “ The relatives of the victim had applied to the coroner for leave for the carrying out of a second post mortem examination . Their application was dismissed . Instead of seeking to quash this ruling through the procedures provided for by law , they sought and succeeded the carrying out of a post mortem examination through a relevant oral authorisation of the Attorney General of the Republic and the police . What actually happened , amounted to getting around the ruling of the coroner not through the procedures provided for by the law but through means which are unknown to the law ” .

ORG added that the fact that the prosecution had the initiative in the preliminary examination and in gathering material of evidence did not render the trial unfair . The applicant had the opportunity to cross - examine witnesses against him and enjoyed a full equality of arms in the proceedings .

Furthermore , ORG held : “ However , we note that the relevant illegality was brought about in an effort to help the relatives of the victim , who , in their distress , were seeking a second opportunity to investigate the circumstances in which their beloved met her death ” . ORG further stressed that besides the evidence of PERSON , there was the evidence of the victim ’s father , who was at the flat of the first floor , right below the couple ’s flat , and whose narration reads as follows in ORG judgment : “ Then , he heard a loud shout by the accused like roaring ( he imitated the roaring in the court room ) and TIME the noise of something like a bundle falling on the floor . Then , after TIME , he heard something like dragged steps as if somebody was dragging something heavy , furniture being bumped and the noise of a window or a door being opened . ”

LAW of the Coroner ’s PERSON . CARDINAL provides :

“ An order authorising the burial or other disposal of a body upon which it has been decided to hold an inquest may be issued by the coroner at any time after the body has been viewed . ”

Under the domestic laws of the Republic , a distinction is drawn between the admissibility of illegally obtained evidence according to the nature of the illegality . In the leading case of the Police v. PERSON ( DATE ) CARDINAL ORG CARDINAL , ORG held in the light of Articles CARDINAL and QUANTITY of the LAW that evidence obtained in violation of constitutional rights and liberties was inadmissible .

If evidence is obtained by other illegal means , its admissibility is a matter falling within the discretion of the trial court . The domestic courts have adopted the principles established by the LANGUAGE common law as set out by ORG in the case of NORP v. PERSON ( DATE ) CARDINAL All E.R. DATE . In practice , the test applied under the common law is the same as that now applied in GPE under section CARDINAL of ORG DATE , which was explained in paragraph CARDINAL of the ORG ’s judgment in the case of PERSON v. the GPE .