David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

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

NORP The facts of the case may be summarised as follows .

NORP The applicant arrived in GPE on DATE and claimed asylum DATE on the basis of his fear of General PERSON ( a warlord of NORP ethnicity also referred to as “ General PERSON ” who currently holds the position of the Chief of Staff to the Commander in Chief of ORG , President PERSON ) , his commanders and their sons . The applicant claimed that his father had worked as a local police commissioner in Saripool province in northern GPE and as an adviser to General PERSON ( another warlord of NORP ethnicity who is considered to be General PERSON ’s rival ) . The applicant claimed that in DATE , with his father ’s assistance , General PERSON had helped the ORG attack General PERSON thereby killing many of his commanders and removing General PERSON from his position as the dominant power holder in the central area of northern GPE .

The applicant also claimed that , in DATE , he had been arrested by the ORG and then released after the payment of a bribe .

Most significantly , the applicant claimed that , after he had been reappointed as military commander of most of the northern provinces of GPE in DATE , General PERSON had arrested and ill - treated the applicant and his father . The applicant had managed to escape but General PERSON had killed his father . The applicant had fled GPE in fear not only of General PERSON but also his troops and the sons of the commanders who had previously been killed in DATE by General PERSON . He claimed that , while General PERSON had security in GPE as a member of the new NORP Government , in contrast he would have no similar protection .

On DATE , the Secretary of ORG refused the applicant ’s asylum application . The applicant appealed against the refusal of his asylum claim claiming that his return to GPE would violate , inter alia , ORG and CARDINAL of the Convention .

NORP In a determination of the DATE , his appeal was allowed by an Adjudicator at the then ORG ( “ IAA ” ) who found that the applicant ’s account of events had been consistent and that the applicant was a credible witness . The Adjudicator accepted that his father had been a high - ranking member of the military and that the applicant and his father had both faced difficulties and suffered ill - treatment in GPE as a result of his father ’s political opinion and activities for General PERSON . The Adjudicator found that , given the objective country information and the fact that the applicant ’s father had been a conspicuous high - ranking officer , the applicant would be at risk in GPE ( the capital of GPE in northern GPE and the most important NORP city in GPE ) from General PERSON and that the NORP authorities would not be able to offer him adequate protection there . The Adjudicator also stated that , given the general insecurity and lawlessness of local warlords , he was minded to believe that there was , albeit marginally , a likelihood that the applicant would also be at risk in GPE . Finally , he found that , even if no such risk arose in GPE , given the applicant ’s age and the general circumstances there it would be unduly harsh to expect him to relocate there upon return to GPE .

NORP The Secretary of ORG subsequently sought permission to appeal to the then ORG ( the “ ORG ” ) .

On DATE , the ORG allowed the Secretary of ORG ’s appeal and found that the ORG findings on internal flight had been unsustainable . In coming to that conclusion , the ORG had before it a report prepared by PERSON , an expert on GPE , which had predicated the applicant ’s safety in GPE on the basis of his ability to maintain a low profile there . PERSON had considered that , while it was not possible to establish with certainty that the applicant would be targeted by his father ’s enemies , the applicant would have to take that possibility seriously . PERSON had concluded that it was unlikely that the applicant would experience a serious threat from General PERSON or his political party but had considered that “ some local commanders might [ have an interest in him ] , depending on the past actions of [ the applicant ’s ] father and especially if it was not possible to target the father directly , because he is already dead or because he has sought refuge elsewhere . ”

After examining PERSON report , the ORG found that “ as the son of a person whose father was involved with General PERSON , the risk DATE is very low unless General PERSON was unable to exact revenge on his father . ” Due to the fact that the applicant ’s father had already been killed by General PERSON , the ORG considered that revenge had been exacted , and the applicant would not therefore be at risk .

Furthermore , noting that General PERSON himself was resident in GPE , the ORG considered that the applicant could also safely internally relocate to GPE where single young men would be relatively safe . The ORG found that the possibility of an attack upon the applicant by General PERSON or his followers in GPE was “ remote ” and that anyone in GPE on General PERSON ’s behalf would not be interested in pursuing his former enemies because they were defending his office and leading members of his political party in the city .

Finally , the ORG did not accept that there was any evidence that General PERSON or his commanders would be interested in pursuing the family members of his former enemies .

On DATE , the applicant was refused permission to appeal to ORG .

On DATE , the applicant was detained at ORG pending his removal from GPE . Removal directions to GPE were cancelled for unknown reasons . On DATE , the applicant was admitted to hospital before being released to his home address .

On DATE , the applicant submitted further representations to the Secretary of ORG based upon a report dated DATE by Dr PERSON , an expert on GPE . That report summarised the background to and the security situation prevailing in GPE at that time . In respect of the risk from General PERSON , the report stated , inter alia , that :

“ ... the primary risk to S.S arises from the fact that his father may have facilitated the successful entry of General PERSON into GPE through the provision of strategic , logistics and technical support , drawing on his experience gained while working within ORG of the former ORG of DATE . General PERSON may , therefore , have good reason to continue to feel aggrieved over the actions of ORG ’s father and may , subject to considerations of his own power and influence within the current NORP government , have an interest in targeting S.S. , notwithstanding that FAC ’s father may already have been killed by his militia . It is important to note , in this regard , that General PERSON has a reputation for serious human rights abuses and for particular ruthlessness . He would , therefore , have no hesitation in killing S.S. if other considerations did not dictate otherwise . It should be noted in this regard that , although President PERSON has maintained a certain distance from General PERSON because of his human rights record , ORG has sought respectability and this has been rewarded through various defence - related posts of a largely honorary nature . It is therefore difficult to assess whether General PERSON would risk undermining this by actively seeking ORG It should nonetheless be noted that his decision to imprison CARDINAL of ORG prisoners , in DATE , in conditions which were likely to lead to their deaths and to do so under the watch of GPE forces showed little regard for his international reputation . It would also not be difficult for General PERSON to arrange for ORG to be killed without this being traced back to him .

On the other hand , some of his commanders may be influenced solely by their desire to avenge [ General ] PERSON ’s treachery and , while [ General ] PERSON may be too well protected to represent an easy target , may see an opportunity through S.S. ’s inability to protect himself , to act out their revenge . It should be stressed that it would be difficult for FAC to escape detection if he was being actively targeted . ”

NORP The report commented that the applicant would be entirely vulnerable in GPE if General PERSON or his supporters were to actively target him . In addition , the report commented upon the ORG ’s findings of CARDINAL DATE and did not agree that PERSON report had necessarily indicated that the risk to ORG was a low one . The report stated :

“ ... it should be noted that there has been , for DATE , a pronounced labelling process in GPE so that people have been identified with members of their families who have taken particular political positions or brought harm to others by virtue of the power they wielded . The individual is thus identified by association with his relatives and it is common practice for revenge attacks to be undertaken against male relatives if the original perpetrator of the action is no longer alive or to be found . It is also important to note that the desire to take revenge can pass through the generations , particularly if the original action which led to such a desire was especially serious . Given that the technical , logistics and strategic support provided by ORG father may have been of significant benefit in enabling General PERSON to capture and subsequently facilitate the entry of the ORG into GPE , those who may seek to avenge his role may regard it as sufficiently serious to take revenge against FAC , as his son . I do not regard paragraph CARDINAL of PERSON report as necessarily indicating that the risk to ORG of being actively targeted by some local commanders is a low one . As he notes , the wishes of such commanders to actively target FAC is dependent on the past actions of his father . As these actions were of a potentially very serious nature , the risk to ORG may be a high one . ”

The report also set out that , in Dr PERSON ’s view , ORG may be at risk from the ORG on account of the CARDINAL of ORG fighters who had died in GPE after General PERSON had withdrawn his allegiance from the ORG . However , PERSON clarified that the possibility of a revenge attack upon the applicant from the ORG had to be set against the fact that the ORG had not killed him when he claimed that they had arrested him and imprisoned him during their period of control of FAC DATE .

On DATE , the Secretary of ORG refused the applicant ’s representations as not amounting to a fresh asylum claim because some of the points he had raised had already been considered in his earlier claim and the remaining points would not have created a realistic prospect of success before an immigration judge . It was not accepted that the applicant had shown that the ORG would have the motivation , means or opportunity to target him in GPE , an area outside of their control , particularly in light of the fact that they had not harmed him when they had detained him in DATE .

It was further not accepted that General PERSON would still be interested in actively targeting the applicant due to , inter alia , the manner of his escape from detention in DATE ; the passage of DATE since his arrest by General PERSON ; the fact that General PERSON would now have other priorities ; and the fact that General PERSON had already gained revenge by killing the applicant ’s father . Furthermore , it was noted that the ORG had , DATE , assessed the risk to the applicant as low and it was considered that the risk to him DATE would be even lower .

In addition , relying on the reasoning of the ORG determination , the Secretary of ORG did not accept that , even if General PERSON was interested in the applicant , he would be able to harm him in GPE . In particular , as General PERSON reportedly lived in GPE and was able to protect himself there , there was no reason to suggest that the applicant would not be able to do the same . It was therefore considered that the applicant had failed to show that his circumstances were more likely to cause him to be harmed than any other ordinary citizen .

Finally , it was not accepted that the applicant would be destitute in GPE as he was no more vulnerable than any other citizen and had shown great resourcefulness in GPE where he had picked up transferable skills which would be of benefit to him upon return to GPE .

On DATE , ORG refused to grant the applicant permission to apply for judicial review , stating that it was not arguable that the Secretary of ORG ’s decision not to treat the applicant ’s further submissions as a fresh claim was unlawful or irrational , or that those submissions had not been given anxious scrutiny .

On DATE , ORG , set up to consider unresolved asylum cases , gave further consideration to the applicant ’s case and decided that it would not be appropriate for the applicant to be granted leave to remain in the GPE bearing in mind , inter alia , his age ( because it was not unreasonable to expect the applicant at DATE to adapt to life back in GPE ) ; the fact that , even though he had been in GPE for DATE , he had been without valid leave to remain throughout that period ; his lack of strong ties or family in GPE ; his past failure to maintain contact with immigration authorities ; and the lack of any compassionate or compelling circumstances in his case .

On DATE , the Secretary of ORG set removal directions to GPE for the applicant scheduled to take place on DATE . Those removal directions were deferred when , on DATE , ORG granted the applicant an injunction to prevent his removal from GPE , pending the hearing of his renewed application for judicial review at ORG .

On DATE , ORG refused permission to apply for judicial review further to the renewed permission hearing , thus discharging the injunction . ORG noted that there was no new evidence other than PERSON report which was of a qualified nature and demonstrated only the conditional nature of the risk to which the applicant would be subject in GPE . In that regard , he stated :

“ In particular , it was only a risk if General PERSON or his senior supporters decided to target the [ applicant ] in GPE . [ The applicant ’s counsel ] relied on the passage of time since the [ ORG ] ’s decision , but it is significant that there is nothing in Dr PERSON ’s report to suggest that what was said in the [ ORG ] ’s decision about the risk being low , unless the ORG had been unable to exact revenge on the father , was changed . What PERSON states is that he does not accept PERSON report as necessarily indicating that the risk of actively being targeted by local commanders is a low one , and the risk of being targeted may be a high one . These are examples of the qualified nature of his report .

Given those qualifications , and the limited extent to which the recent report departs from the earlier expert report submitted on behalf of the claimant , I do not consider that the Secretary of ORG ’s decision that there was no realistic prospect of success before the ORG ... was ORG unreasonable or otherwise flawed on public law grounds . ”

On DATE , the applicant lodged an application before the ORG and requested an interim measure under LAW to stop his removal to GPE the following day .

On DATE , the Acting President of the Section to which the application was allocated decided to apply Rule CARDINAL of ORG and to indicate to the Government that the applicant should not be expelled until further notice .

It appears that , on DATE , DATE after the applicant lodged his application before the ORG , he applied to ORG for an injunction to prevent his removal and permission to appeal against ORG refusal to grant permission to apply for judicial review . On DATE , ORG refused his application for an urgent injunction to stop his removal .

NORP In support of his application , the applicant ’s representatives had obtained a supplementary expert report from PERSON dated DATE . PERSON set out examples of human rights abuses committed by General PERSON and concluded that , if he sought to avenge the actions of an individual who had acted against his interests , he would have no hesitation in killing him or members of his family .

NORP The report further set out the power struggle between General PERSON and General PERSON and the significance of General PERSON ’s actions in removing General PERSON from his position of power in DATE . The report went on to state :

“ Whilst there is no objective documentation to establish whether ORG ’s father was instrumental in [ General ] PERSON ’s successful entry into ORG in DATE , any such involvement , if it was significant to the final outcome would , in my view , be sufficient to justify a very considerable desire on [ General ] PERSON ’s part for revenge . Given this , I would regard it as a reasonable possibility that [ General ] PERSON would seek to take revenge against S.S. , even though revenge has already been exacted against the father .

... it should be noted that ORG has provided evidence of a direct link , by virtue of his position as the son of his father , to a serious grievance which [ General ] PERSON will inevitably hold against [ General ] PERSON . While it is never possible to provide evidence that the potential perpetrator of targeted violence will opt to give expression to a grievance that he hold , there is a reasonable probability in this case , based on the severity of the original grievance that , subject to ORG ’s father having played a significant role in facilitating the entry of [ General ] PERSON into GPE in DATE , [ General ] PERSON would have an interest in targeting S.S. , who is clearly identified with a specific grievance , albeit indirectly through his father .

... it is not my experience , in monitoring developments in GPE , that the passage of time will necessarily lessen the desire to exact vengeance . ”

NORP The report also considered that , in PERSON view , the applicant would be particularly exposed to targeted violence from the ORG if , as was likely , he was unable to afford accommodation in GPE . It further stated that the ORG may have an additional interest in the applicant given his association with General PERSON .

On DATE , ORG dismissed the applicant ’s application for permission to appeal on the papers , taking the view that the supplementary expert report did not undermine ORG decision . ORG stated that :

“ The issue for me is whether Beatson J , in the light of the information then ( and arguably now ) available was wrong to refuse permission to review judicially the SSHD [ Secretary of ORG for ORG ] ’s decision to certify .

Unfortunately , to my mind , PERSON latest report does not truly seem to be providing new material , post dating or undermining PERSON decision . Rather this proposed appeal is an attempt to reargue the material available before ORG in a different form . ”

On DATE , ORG dismissed his renewed application for permission to appeal further to an oral hearing . PERSON , with whom both PERSON and ORG agreed , stated that he had given both PERSON first and supplementary reports anxious scrutiny but did not consider that the supplementary report was any different in substance to his first report . He stated that :

“ It is true that later in the report ... PERSON uses the expression “ reasonable probability ” rather than “ reasonable possibility ” , but , looking at the substance of the matter , PERSON is in my view doing no more than to repeat in different language the assessment of the risk that he had proffered in his first report . He relies upon no new developments in GPE from which it is to be inferred that the enthusiasm of General PERSON to exact vengeance upon the applicant for the activities of his father is likely to have increased over time , rather than , as would perhaps be expected , to have waned as other priorities and imperatives have emerged .

In my judgment PERSON second report contains no material which could properly lead this court to reach a conclusion different from that reached by Beatson J. ”

Section CARDINAL(CARDINAL ) of the Nationality , Immigration and Asylum Act DATE , provides a right of appeal against an immigration decision made by the Secretary of ORG for ORG .

Appeals in asylum , immigration and nationality matters were , until DATE , heard by ORG at the ORG . LAW DATE provided that , with the permission of the ORG , a party to an appeal could apply to the ORG against an ORG determination on a point of law . LAW DATE provided that where the ORG had determined an appeal under LAW , a party to the appeal could bring a further appeal on a point of law to ORG .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen . Section CARDINAL ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right .

Country guidance determinations of both the former ORG and ORG ( “ ORG ” ) are to be treated as an authoritative finding on the country guidance issue identified in the determination , based upon the evidence before the members of the ORG or ORG that determined the appeal . Unless expressly superseded or replaced by a later country guidance determination , country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence .

In the country guidance determination of TIME and Others ( GPE – PERSON - i - Islami ) GPE CG [ DATE ] UKAIT DATE , the ORG held , inter alia , that , subject to an individual ’s personal circumstances , it was unlikely to be unduly harsh ( or unreasonable ) to expect them to relocate to GPE if they had established a real risk of serious harm in ( and restricted to ) areas outside GPE .

In the country guidance determination of ORG ( ORG – PERSON - i - Islami – risk ) GPE CG [ DATE ] UKAIT DATE , the ORG held , amongst other matters , that :

“ Where the risk to a particular appellant is confined to his home area , internal relocation to GPE is in general available . It would not be unduly harsh to expect an appellant with no individual risk factors outside his home area to live in GPE and assist in the rebuilding of his country .

If an appellant establishes a wider risk , extending beyond the home area , internal relocation is not necessarily available and sufficiency of protection will depend on his individual circumstances and characteristics . In particular

( a ) internal relocation outside GPE is unlikely to provide sufficiency of protection as the areas outside GPE remain under the control of local warlords , and the population is suspicious of strangers ; and

( b ) the safety of internal relocation to GPE is a question of fact based on the particular history of an individual appellant and of the warlord or faction known to be seeking to harm him . ”

NORP In the country guidance determination of ORG ( LAW ) : Indiscriminate violence ) GPE CG [ DATE ] UKAIT CARDINAL , promulgated on DATE , the then ORG held that there was not in GPE such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would , solely by being present there , face a real risk which threatens the civilian ’s life or person , such as to entitle that person to the grant of humanitarian protection , pursuant to ORG ) and ORG .

Section CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Immigration Act DATE provide for the making of Immigration Rules by the Secretary of ORG . Paragraph CARDINAL of ORG provides as follows :

“ When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :

( i ) had not already been considered ; and

( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”

As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny , ORG in PERSON ( ORG ) v SSHD [ CARDINAL ] EWCA Civ CARDINAL ( paragraphs CARDINAL ) has held :

“ Accordingly , a court when reviewing a decision of the Secretary of ORG as to whether a fresh claim exists must address the following matters . First , has the Secretary of ORG asked himself the correct question ? The question is not whether the Secretary of ORG himself thinks that the new claim is a good one or should succeed , but whether there is a realistic prospect of an adjudicator , applying the rule of anxious scrutiny , thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of ORG of course can , and no doubt logically should , treat his own view of the merits as a starting - point for that enquiry ; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of ORG making up his own mind . Second , in addressing that question , both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts , has the Secretary of ORG satisfied the requirement of anxious scrutiny ? If the court can not be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of ORG ’s decision . ”

Thus , an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “ fresh claim ” which , even if then refused by ORG , will nonetheless generate a fresh right of appeal to be considered on the merits .

On DATE , ORG issued the most recent ORG needs of ORG from GPE ( “ the DATE LAW ” ) and set out the categories of NORP considered to be particularly at risk in GPE in view of the security , political and human rights situation in the country at that time .

Those Guidelines observed :

“ ORG considers that individuals with the profiles outlined below require a particularly careful examination of possible risks . These risk profiles , while not necessarily exhaustive , include ( i ) individuals associated with , or perceived as , supportive of ORG and the international community , including ORG ( ORG ) ; ( ii ) humanitarian workers and human rights activists ; ( iii ) journalists and other media professionals ; ( iv ) civilians suspected of supporting armed anti - Government groups ; ( v ) members of minority religious groups and persons perceived as contravening Shari’a law ; ( vi ) women with specific profiles ; ( vii ) children with specific profiles ; ( viii ) victims of trafficking ; ( ix ) lesbian , gay , bisexual , transgender and intersex ( PERSON ) individuals ; ( x ) members of ( minority ) ethnic groups ; and ( xi ) persons at risk of becoming victims of blood feuds .

ORG generally considers internal flight as a reasonable alternative where protection is available from the individual ’s own extended family , community or tribe in the area of prospective relocation . Single males and nuclear family units may , in certain circumstances , subsist without family and community support in urban and semi - urban areas with established infrastructure and under effective Government control . Given the breakdown in the traditional social fabric of the country caused by DATE of war , massive refugee flows , and growing internal migration to urban areas , a case - by - case analysis will , nevertheless , be necessary . ”

The DATE Guidelines further stated :

“ The well - established practice of blood feuds is rooted in traditional NORP culture . Blood feuds are conflicts between opposing families , tribes and armed factions , and are often initiated in reaction to perceived violations to the honour of women , property rights , and land or water issues . According to the practice , individuals associated with the family or tribe of the individual seen as the wrongdoer are targeted by the victim ’s tribe or family members . Revenge is sought through killing , physically injuring or publicly shaming the perpetrator or individuals related by family or tribe .

Blood feuds can be long - running conflicts , lasting for generations , with a cycle of retaliatory violence between parties . Solving a dispute through a formal justice mechanism does not normally put an end to a blood feud . Particularly among NORP , blood feuds can be settled through a formal decision of a jirga – generally an all - male community - based dispute resolution mechanism . A peaceful compromise , such as a bad dadab marriage , may sometimes prevent a dispute from spiralling into a blood feud .

In light of the foregoing , ORG considers that persons involved in , or targeted because of , a blood feud may , depending on the circumstances of the individual case , be at risk on account of membership of a particular social group . Claims by persons with the aforementioned profiles may , however , give rise to the need to examine possible exclusion from refugee status . ”


Remainder inadmissible;Violation of Art. 6-3-c+6-1;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE .

On DATE , in the context of an operation carried out against the illegal armed organisation ORG ( “ Party of God ” ) , the applicant was arrested and taken into police custody .

The applicant signed a “ form explaining the rights of arrested persons ” and was notified of the charges against him . He was informed of his right to remain silent and to see a lawyer at the end of the police custody period . The police questioned him . The applicant exercised his right to remain silent .

A search was carried out at the applicant ’s home . The police seized an audio - cassette . The transcript of the tape was worded as follows : “ The tape is , for the most part , inaudible . There are incomprehensible speeches in NORP . It also contains songs , in which the word ‘ sharia’ can be heard , but the sentences are also incomprehensible . ”

Throughout this period , the applicant continued to remain silent .

On DATE the applicant was placed in pre - trial detention by a judge of ORG .

In an indictment dated DATE , the applicant and CARDINAL other persons were charged with being members of ORG by the public prosecutor at ORG . The latter called for the applicant ’s conviction on the basis of LAW .

The first hearing took place on DATE before ORG ( “ the State Security Court ” ) . The applicant , assisted by his lawyer , denied all the charges against him . He claimed that the audio - cassette seized from his home belonged to his mother and that he did not know what was on it .

At the hearing on DATE the judges read out statements by CARDINAL other persons charged in separate criminal proceedings concerning the same organisation , which named the applicant as one of the leading members of the organisation . The accused were also shown seized documents pertaining to the organisation . Counsel for the applicant addressed the court and argued that the elements constituting the offence had not been made out . He claimed that the applicant should be tried for aiding and abetting an illegal organisation on the basis of LAW , and not for belonging to such an organisation . He did not ask to call any witnesses .

During the hearings of DATE , DATE and DATE the applicant ’s lawyer repeated his previous submissions and requested that his client benefit from the provisions of LAW ( Law no . DATE ) .

The applicant argued his case at the hearing of DATE . He claimed to have no ties with the organisation in question and asked to be acquitted . His lawyer also addressed the court and referred once again to the defence pleadings that he had filed during the trial , requesting , under PERSON no . DATE , a stay of the proceedings brought against his client .

At the end of the hearing , ORG sentenced the applicant to DATE and QUANTITY months’ imprisonment on the basis of LAW .

In support of its decision , the court took into account all the reports and documents in the case file . In particular , it gave consideration to the statements naming the applicant as one of the leading members of the organisation . It also based its decision on a document which showed the applicant ’s position within the organisation . The court found it established , among other things , that the applicant was an active member of the organisation .

The applicant ’s lawyer lodged an appeal on points of law against the judgment of DATE on behalf of his client .

On DATE ORG at ORG submitted his opinion on the merits of the appeal . This opinion was not sent to either the applicant or his lawyer .

Following a hearing on DATE , ORG upheld all the provisions of the impugned judgment . Its judgment was delivered on DATE with neither the applicant nor his lawyer present .

On DATE the full text of ORG judgment was added to the case file kept at the registry of ORG and was thus made available to the parties .

The relevant provisions of NORP law can be found in , among other judgments , PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( [ ORG ] , no . CARDINAL , § DATE , ORG PERSON ) .


The applicant is an NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

A.

On DATE ORG ( PERSON ) convicted the applicant inter alia of attempted extortion ( versuchte ErpressungOberster PERSON ) , it noted that it also had to take into account to what extent punishment was necessary to deter the applicant from further wrongdoing or to deter others from committing similar offences .

On DATE ORG dismissed the applicant ’s plea of nullity ( PERSON ) . It noted the applicant ’s allegation that ORG had violated the law in that it took aspects of deterrence ( Spezial- PERSON ) into account when determining his sentence . However , within the statutory range of punishment , the court , when determining which specific sentence was commensurate to the accused ’s guilt , had a certain margin of appreciation within which it could also have regard to aspects of deterrence . Thus , the applicant had to be understood as alleging that ORG had not correctly exercised its discretion . This question had to be examined before ORG ( Oberlandesgericht ) .

On DATE ORG dismissed the applicant ’s appeal ( GPE ) . It noted that ORG had relied on well established case - law when indicating that it had also taken aspects of deterrence into account . ORG stated that it saw no reasons to reduce the sentence and confirmed ORG view that the sentence was commensurate to the applicant ’s guilt .

B. Relevant domestic law and practice

The applicant alleges that the determination of the concrete sentence was in contradiction with section CARDINAL of LAW ) . Section CARDINAL in the version which was in force at the material time - read as follows :

“ ( CARDINAL ) The basis for assessing the sentence is the degree of the offender ’s guilt .

( CARDINAL ) In assessing the sentence , the court must weigh up the aggravating and mitigating factors , in so far as they have not already been taken into account to determine the type or tariff of penalty applicable . It must have regard , above all , to the extent to which the offence can be attributed to an attitude of rejection or indifference on the part of the offender towards values protected by the law , and the extent to which it can be traced back to external circumstances or motives capable of inducing even a law - abiding person to commit it .

( CARDINAL ) As a general principle , the severity of the sentence should be increased in proportion to the significance of the damage or injury , or risk of damage or injury , caused by the offender or for which he is liable , even if he did not cause it himself ; the number of duties he breached by his conduct and the degree of premeditation , of care in preparing or ruthlessness in committing the offence , and in inverse proportion to the extent to which it could be guarded against . ”

The established case - law ( see for instance ORG judgments of CARDINAL , EvBl CARDINAL/CARDINAL , of CARDINAL , EvBl CARDINAL/CARDINAL , of CARDINAL , PERSON and of CARDINAL , EvBl DATE ) , as well as the prevailing opinion in academic writing ( see for example PERSON , ORG in PERSON , DATE ) CARDINAL ) , interpret the above provision as follows : The offender ’s guilt is decisive for the determination of the penalty . However , the offender ’s guilt can not be equated to CARDINAL precise amount of penalty ( Punktsstrafe ) , but determines a range of possible punishment ( PERSON ) . The actual sentence imposed on the offender must not exceed this range . Within this range , however , aggravating and mitigating circumstances as enumerated in sections CARDINAL and CARDINAL of LAW as well as aspects of deterrence may be taken into consideration when determining the actual amount of penalty .


Violations of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant lives in GPE , GPE .

The applicant is the co - owner of a plot of land in GPE , GPE which had been designated as building land ( Bauland ) ; CARDINAL building had already been constructed on the land . On DATE the PERSON municipal authorities informed the applicant that they intended to modify the area zoning plan ( GPE ) and to designate the remaining part of the land as open land ( Freihaltefläche ) because , being located on a steep slope , they considered that the remaining part was not suitable for construction under ORG ( Raumplanungsgesetz ) .

On DATE the applicant lodged an application for a building permit in order to construct a hotel on the plot of land at issue .

On DATE the Lech municipal authorities issued a building prohibition in respect of the applicant 's plot of land .

ORG ( “ ORG ” ) ( ORG ) held a hearing on DATE concerning the applicant 's application for a building permit .

On DATE the Lech municipal authorities extended the building prohibition .

On DATE the applicant lodged an application for a transfer of jurisdiction ( Devolutionsantrag ) because ORG had not reached a decision within the statutory DATE time - limit .

NORP ORG ( “ the Regional Government ” ) allowed that application on DATE but dismissed the applicant 's application for a building permit on the ground that the permit would contravene the building prohibition . The applicant lodged a complaint with ORG .

On DATE ORG ( “ the ORG ” ) issued a decree determining the maximum building density ( Baunutzungszahl ) for the category of land which included the applicant 's land , and on DATE it lifted the building prohibition . The applicant thereupon asked ORG to reopen the building permit proceedings .

On DATE ORG dismissed the applicant 's complaint against the decision of DATE . It found that the building prohibition was lawful .

On DATE ORG dismissed the request to reopen the building permit proceedings . The applicant lodged a complaint with ORG .

On DATE ORG dismissed the applicant 's complaint . It found that the conditions for reopening the building permit proceedings had not been met . That decision was served on DATE .

The applicant requested a partition of land ( LOC ) on CARDINAL DATE , but withdrew this request on DATE .

On DATE the applicant lodged a fresh application for a building permit to enable him to carry out construction work on his land .

On DATE ORG informed the applicant of the PERSON municipal authorities ' submissions to the effect that the maximum building density laid down by the decree of DATE did not allow the construction of another building on his plot of land . The applicant commented on this information . After the PERSON municipal authorities had submitted further comments on DATE , the applicant asked ORG to decide on his application .

On DATE ORG adopted a building plan ( GPE ) which amended the decree of DATE but left the maximum building density unchanged . On DATE ORG approved the building plan .

On DATE ORG dismissed the applicant 's application for a building permit . It found that the maximum building density defined in the building plan did not allow the construction of another building on the applicant 's plot of land . On DATE the applicant lodged an appeal .

ORG dismissed the appeal on DATE and upheld ORG finding .

On DATE the applicant lodged a complaint with ORG and requested an oral hearing . He submitted that the area zoning plan and the building plan were unlawful , and claimed that ORG had refused to allow him to consult the case file in the building plan proceedings .

On DATE the Lech municipal authorities submitted their observations ; on DATE ORG did likewise .

On DATE the applicant 's counsel consulted the case file at ORG , which , on DATE , forwarded all the case file documents to him .

On DATE the applicant 's counsel asked ORG if he could consult further documents concerning the original area zoning plan .

On DATE ORG declined to deal with the complaint because it lacked any prospect of success . It found that , considering the hillside location of the plot of land , its allegedly unlawful designation appeared to be reasonable .

Subsequently , the case was transferred to ORG and on DATE the applicant amended his complaint and requested an oral hearing . He submitted that the refusal to issue the building permit had been based on an unlawful area zoning plan and building plan . He requested that a hearing be held and an on - site inspection carried out , and that he be given the opportunity to consult all the documents concerning his plot of land .

On DATE ORG dismissed the complaint . It found that the refusal to issue the building permit had been lawful , because the maximum building density for the plot of land at issue had already been exceeded by the construction of the existing buildings . Furthermore , it found that it was not necessary to hold a hearing or to carry out an on - site inspection , because the applicant had merely contested the lawfulness of the area zoning plan and the building plan , which had already been reviewed by ORG . That decision was served on DATE .

On DATE the applicant applied for a building permit for a private house on the same plot of land .

Following a hearing held on DATE , on DATE the PERSON municipal authorities granted the application ; the decision was served on the applicant 's counsel on DATE .

NORP In NORP law area zoning plans and any amendments thereto are regarded as decrees ( ORG ) , even if they only concern CARDINAL individual 's property . Accordingly , the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them . The lawfulness of decrees can be challenged before ORG under LAW . However , case - law has established that area zoning plans can not be directly challenged in proceedings under LAW by the individuals affected if it is possible to institute administrative proceedings .

This is the case , in particular , where the area zoning plan is the basis for the granting or withholding of building permits . The persons affected are expected to assert their rights in administrative proceedings concerning the building permit , in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation .

The review of the lawfulness of general legal acts such as decrees issued by administrative authorities as to their lawfulness and of laws ( Gesetze ) as to their constitutionality is concentrated with ORG . Only that ORG is therefore to carry out this review . LAW , insofar as relevant , provides as follows :

“ ( CARDINAL ) ORG decides on application by an ordinary court or an independent administrative tribunal whether decrees issued by a federal or regional authority ... are contrary to law , but ex officio in so far as ORG would have to apply such a decree in a case pending before it . It also decides on application by ORG whether decrees issued by a regional authority are contrary to law and likewise on application by the municipality concerned whether ordinances issued by a municipal affairs supervisory authority ... are contrary to law . It decides furthermore whether decrees are contrary to law when an application alleges direct infringement of personal rights through such unlawfulness in so far as the decree has become operative for the applicant without the delivery of a judicial decision or the issue of a ruling ...

( CARDINAL ) NORP If the applicant of a complaint lodged with ORG , entailing application of a decree by ORG , receives satisfaction , the proceedings for the review of a decree shall nevertheless continue .

( CARDINAL ) ORG may repeal a decree as contrary to law only to the extent that its repeal was expressly requested or ORG would have had to apply it in the pending case . If ORG reaches the conclusion that the whole decree

a ) has no legal basis ,

b ) DATE was issued by an authority without competence in the matter , or

c ) was published in a manner contrary to law ,

it shall repeal the whole decree as unlawful . This does not hold good if repeal of the whole decree manifestly runs contrary to the legitimate interests of the applicant who has filed a complaint pursuant to the last sentence in DATE above or whose case has been the occasion for the initiation of ex officio review proceedings into the decree . ”


Violation of Art. 6-1 regarding the right of access to court;Violation of Art. 6-1 regarding the length of proceedings;Violation of P1-1

In DATE the NORP State occupied an olive grove of a total area of CARDINAL sq . m in LOC ( northern GPE ) and assigned it to ORG Relief Committee ( PERSON ) with a view to settling refugees from LOC Minor there following the mandatory exchange of populations with GPE under LAW . The land was occupied without any compensation being paid to the owners of the olive grove , of whom the applicants are the heirs . The basis for the occupation was a government ordinance of DATE authorising the expropriation and occupation of land before any compensation was paid to its owners . The ordinance was subsequently ratified by a constitutional resolution of CARDINAL DATE ; its content was also incorporated into LAW .

On DATE , by decision no . CARDINAL/CARDINAL of ORG ( PERSON ) , ORG expropriated the land in question .

On DATE the applicants lodged an application with the appropriate courts for compensation owed them by the ORG , which had in the meantime taken over from ORG . Following that application the following judgments , among others , were delivered :

( i ) interlocutory decision ( προδικαστική ) no . CARDINAL/CARDINAL of ORG of First Instance ordering a number of expert assessments ;

( ii ) NORP final decision no . CARDINAL of ORG of First Instance assessing the final unit amount of compensation at CARDINAL drachmas ( GRD ) per square metre ; the parties appealed against that decision ;

( iii ) interlocutory judgment no . CARDINAL/CARDINAL of ORG of Appeal setting aside the decision and ordering the parties to produce supplementary evidence ;

( iv ) decision no . CARDINAL/CARDINAL of the President of ORG of First Instance recognising that the applicants were entitled to the compensation assessed ;

( v ) judgment no . CARDINAL of ORG of Appeal quashing judgment no . CARDINAL/CARDINAL and ordering the case to be remitted to ORG of First Instance ;

( vi ) decision no . CARDINAL/CARDINAL of ORG of First Instance assessing the final unit amount of compensation at GRD CARDINAL,CARDINAL per square metre ; the parties appealed against that decision , but the hearing was not held until DATE ; in the meantime , on DATE , the applicants had lodged a further application with ORG for an assessment of the compensation amount ;

( vii ) judgment no . CARDINAL/CARDINAL of ORG of Appeal ordering a fresh expert assessment , which was begun in DATE and completed in DATE ; at a hearing on CARDINAL DATE the applicants claimed GRD CARDINAL,CARDINAL per square metre and the ORG raised an objection on the ground that their right to compensation had lapsed ;

( viii ) interlocutory judgment no . CARDINAL of ORG of Appeal dismissing the objection raised by the ORG and ordering the applicants to justify their assessment of the value of their land ;

( ix ) judgment no . CARDINAL of ORG of Appeal dismissing a further objection raised by the ORG that the right to compensation had lapsed and assessing the final unit amount of compensation at GRD CARDINAL,CARDINAL to GRD CARDINAL,CARDINAL per square metre ; the ORG lodged an appeal on points of law against that judgment , raising the same objection again ;

( x ) judgment no . CARDINAL/CARDINAL of ORG of ORG , setting aside ORG judgment on procedural grounds and remitting the case to ORG ; subsequently , on DATE , the applicants lodged a fresh application with that court for a compensation amount to be assessed ;

( xi ) judgment no . CARDINAL/CARDINAL of ORG ordering the case to be remitted to ORG of First Instance to determine the merits of the applications lodged by the applicants on DATE and CARDINAL DATE .

On DATE the applicants resumed the proceedings before ORG of First Instance . They also lodged a further application for a final unit amount of compensation to be assessed . They sought GRD CARDINAL per square metre . In its observations in reply of CARDINAL DATE , the ORG pleaded again that the applicants’ right to compensation had lapsed .

A hearing was held on DATE . On CARDINAL DATE the court ordered the applicants to justify their assessment of the value of their land . On DATE the applicants requested the judge rapporteur to set a date for the hearing of witnesses . An expert assessment was also carried out .

On DATE the applicants asked the court to set a hearing date . The hearing was held on DATE .

On DATE the court decided to adjourn its examination of the case on the ground that an investigative measure ( αυτοψία ) had not been carried out ( decision no . CARDINAL/CARDINAL ) .

On DATE the applicants asked the court to fix a hearing date . The hearing was held on DATE .

On DATE ORG of First Instance dismissed as unfounded the objection raised by the ORG that the applicants’ right to compensation had lapsed and determined the final unit amount of compensation at ORG CARDINAL per square metre ( decision no . CARDINAL/CARDINAL ) .

On DATE the ORG lodged an appeal against that decision . It again raised the same objection .

On DATE ORG set aside decision no . CARDINAL/CARDINAL on the ground that the lower court had incorrectly dismissed the objection raised by the ORG that the ORG claim was statute - barred . Indeed , ORG considered that the applicants’ right to compensation had lapsed since DATE . Giving judgment on the merits , it dismissed the applicants’ application of CARDINAL DATE on the ground that as their claim was statute - barred , they no longer had locus standi ( judgment no . DATE ) .

On DATE the applicants lodged an appeal on points of law . In their statement of grounds of appeal they submitted that ORG had misinterpreted the facts and the constitutional and legislative provisions relating to the limitation of actions , and had wrongly assessed the evidence . They added that , in any event , the objection had already been dismissed by judgments FAC . CARDINAL and CARDINAL of ORG . The applicants stressed , lastly , that they had never received any compensation for the expropriation of their land and that the objection now raised against them contravened the principle of good faith and infringed in particular their right to peaceful enjoyment of their possessions .

On DATE ORG , after examining all the grounds of appeal on points of law submitted by the applicants , dismissed their appeal on the ground that it was ill - founded ( judgment no . CARDINAL/CARDINAL ) .


Violation of Art. 6-1;Not necessary to examine P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed

The applicants were born in DATE , DATE , DATE , DATE and DATE respectively and live in ORG .

On DATE Law no . CARDINAL came into force . LAW law provided the possibility of leasing ORG land to farmers who were in need and who fulfilled certain eligibility criteria ( “ right holders ” ) . In particular , LAW no . CARDINAL provided that those who had been convicted of certain offences were not entitled to benefit from this law ( see paragraph QUANTITY below ) .

Following the promulgation of PERSON no . CARDINAL , the applicants applied to the Commission that was responsible for the determination of farmers who were eligible to be right holders under the PERSON in question and requested to be provided with land in Ceylanpınar in the south - east of GPE . They were subsequently identified as right holders and leased land from ORG ( Tarım Reformu Genel Müdürlüğü ) ( “ the Directorate General ” ) for an indefinite period on payment of a rent . The applicants earned their living by cultivating these fields .

On DATE , after conducting a “ security investigation ” , the Directorate General annulled the right holder status of the applicants .

On DATE the applicants lodged separate cases with ORG and requested that the decision of DATE be annulled . They maintained that they had paid their rent periodically until DATE . They also contended that there was no valid reason to terminate their lease contract . They maintained in this connection that although criminal proceedings had been initiated against them in DATE for being members of an illegal organisation , namely the ORG ( ORG Party ) , they had all been acquitted of the charges against them .

On DATE ORG requested ORG to submit the documents in respect of the decision dated DATE .

On DATE ORG ordered the Directorate General once again to submit further information and the documents in relation to the security considerations of the administration .

On DATE ORG replied that the Minister of Agriculture had refrained from submitting these documents as they concerned the security of the ORG . In this respect , they relied on LAW . The observations of ORG were communicated to the applicants on DATE , DATE , DATE and DATE respectively . According to the Government , the applicants did not submit any observations in reply .

On DATE ORG dismissed the applicants ' cases . The court held that the decision dated DATE which annulled the applicants ' right holder status and the refusal of ORG to submit the relevant documents had been in accordance with the domestic legislation . A member of ORG dissented from the judgments of the court , arguing that the administrative authorities had failed to demonstrate the reason for the annulment of the right holder status of the applicants .

The applicants appealed .

On DATE , DATE , DATE , DATE and DATE respectively ORG upheld the judgments of ORG .

The first applicant was notified of the decision of ORG on DATE , the second applicant on DATE , and the remaining applicants on DATE .

According to LAW no . CARDINAL , persons who are convicted of the offences defined in the first Section of the second Part of LAW and in GPE CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW can not benefit from the distribution of land . LAW CARDINAL of the same PERSON provides that land shall be taken back , had the right holder been convicted of CARDINAL of the offences mentioned in the first paragraph subsequent to the acquisition of land .

LAW no . CARDINAL provides that , in view of the particularities and security of a region and subsequent to obtaining the opinion of the security institutions , ORG is authorised to make amendments in the right holders list prepared by the Commission .

LAW of ORG provides that the Prime Minister or a Minister may refrain from submitting information or documents to an administrative court if the information or documents in question pertain to the security or vital interests of the ORG .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is a journalist and the editor - in - chief of a DATE magazine called ORG , which specialises in crime reporting and has a circulation of CARDINAL . The publisher of ORG is ORG .

On DATE J. , a police officer , stopped a person unknown to him on the road and used his police identity card to take possession of the person ’s car for emergency reasons , as he put it . He then drove off at high speed . After the car appeared to break down , J. tried to acquire another vehicle in the same manner . The persons in the second car turned out to be QUANTITY police officers in civilian clothing , who were monitoring the traffic . After having threatened the police officers with violence , PERSON continued towards his destination . His speed alternated CARDINAL and QUANTITY km / h in a zone where the limit was set at QUANTITY / h . At his destination , J. was apprehended by the police and charged with stealing the vehicle and various other offences .

Soon after his arrest , PERSON gave an exclusive interview , for a fee , to a DATE magazine called CARDINAL-Päivää . His real name was not revealed in the interview but his picture ( face in profile ) was used and the article mentioned that he was , at the time , undergoing involuntary treatment in a mental hospital . J. had also offered an interview to PERSON ( and the applicant ) against payment but the offer was refused by the applicant .

On DATE , in the hearing before ORG ( käräjäoikeus , tingsrätten ) , PERSON pleaded guilty to most of the charges . The court ordered ORG , in accordance with his own request , to undergo psychiatric examination to establish whether he was , at the time , criminally responsible for his actions .

In the DATE edition of ORG an article was published about PERSON and his case . The article was written by the applicant . The information in the article was based on the public court documents acquired by the applicant from ORG after the hearing on DATE . The article included ORG ’s name , DATE of birth , some background information about him and his current place of work , details of the incident of CARDINAL DATE and information that ORG had wished to undergo a psychiatric evaluation before the court ’s decision was made and that he had been ordered to do so by the court .

On DATE the ORG found J. guilty of all charges but , because he had been found not to have been criminally responsible for his actions , the court waived the sentence .

On DATE J. lodged a complaint with ORG ( GPE sanan neuvosto , PERSON för massmedier ) about the subject - matter of the case . On DATE the ORG found that the applicant had violated good journalistic practice by publishing ORG name and information about his psychological examination . The ORG gave the applicant a warning .

On DATE J. requested the police to investigate whether the applicant had committed an offence of “ dissemination of information violating private life ” ( yksityiselämää loukkaavan tiedon levittäminen , spridande av information som kränker privatlivet ) on account of his article . J. also requested the applicant to pay , in addition to his legal fees , MONEY ( ORG ) in damages for mental suffering caused by the article in question .

On DATE the public prosecutor decided not to prosecute as he did not find proof or probable cause to support the indictment . He found that a psychiatric assessment and the decision to order a person to undergo such an assessment were integral parts of crime reporting . No further comments about J. ’s health had been made in the article . Moreover , when balancing the freedom of expression against the protection of privacy , he agreed that the latter required non - disclosure of ORG ’s name . However , the reasons for disclosing ORG name , namely the fact that PERSON was a police officer , the gravity of the charges against him and the need to clear other local police officers , weighed heavier . No crime had thus taken place .

On DATE J. lodged a complaint with ORG ( valtakunnansyyttäjä , riksåklagaren ) who on DATE ordered charges to be brought against the applicant .

On DATE ORG convicted the applicant of dissemination of information violating private life and sentenced him to pay DATE - fines , a total of ORG CARDINAL,CARDINAL , adjusted to his taxable income . In addition , the applicant was ordered to pay J. ’s legal fees in the amount of ORG CARDINAL,CARDINAL.CARDINAL plus interest . J. ’s claim for non - pecuniary damages was dismissed without examining the merits as he had not directed his compensation claim against the publisher of ORG , ORG , who bore the primary responsibility according to the law . The court noted that J. was an experienced police officer whose duties involved the exercise of public power but that he was not of high rank . The crimes had not been committed in office but had taken place during J. ’s free time . The judgments convicting J. as well as the information about his lack of criminal liability and wish to undergo psychiatric evaluation were public . However , all public information was not necessarily publishable . The crimes committed by J. had been ordinary and not very serious . On the other hand , the local interest in the case had been so exceptional that it had been reasonable to write about acts committed by J. and about his state of mind . The applicant had been aware of the fact that J. had been mentally ill at the time of the publication . The publication of ORG ’s name did not strengthen the applicant ’s journalistic message nor was it well - founded in any other way . ORG name had not been disclosed in any other publication . The fact that PERSON had given an interview to the press did not change the outcome of the applicant ’s case as J. had not been able to evaluate the repercussions of his actions due to his mental illness .

Following the applicant ’s conviction , various media published a story about it , mentioning his name and profession . Some of them also included the applicant ’s picture . He did not consent to the media reports .

By letter dated CARDINAL DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , claiming , inter alia , that the publication of public information could not fall within the scope of LAW , section CARDINAL , of LAW and that , in any event , the intention was lacking .

On DATE ORG upheld the lower court ’s decision . The legal fees to be paid by the applicant were lowered to ORG CARDINAL plus interest . The request for non - pecuniary damages was rejected as premature because the compensation claim had not been directed against ORG . The court found , in addition to ORG reasoning , that a crime was not the perpetrator ’s private matter . However , ORG trial had still been pending when the impugned article was published . Due to his mental illness , he had not been able to understand that his acts or trial would attract more publicity than usual . The applicant ’s act was intentional as he must have known that it was probable that the publication of the information would be conducive to suffering or damage to J.

NORP By letter dated DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG refused the applicant leave to appeal . J. was granted leave to appeal with regard to the question of nonpecuniary damages .

On DATE ORG referred the issue of nonpecuniary damages back to the GPE ORG for examination as ORG had not been summoned as a defendant in the case or been reserved an opportunity to be heard in the matter .

On DATE the GPE ORG found the applicant liable for damages . It ordered the applicant to pay ORG , jointly with ORG , EUR CARDINAL plus interest as well as ORG CARDINAL,CARDINAL for costs and expenses . Moreover , the applicant alone was ordered to pay J. costs and expenses in the amount of ORG CARDINAL,CARDINAL.CARDINAL . The court found that the publication of ORG name had caused him and his family mental suffering , especially as his delusions had been mentioned in the article . The article had affected ORG reputation permanently and it had made it difficult for J. to continue to live a normal life . J. had given an interview to another magazine in which his identity had not been disclosed . Therefore , the fact that he had given the interview did not make his suffering any less . At the time of the interview J. had been mentally ill and was not able to assess the consequences of the interview . ORG name had been published by DATE had committed the crimes and during the ORG proceedings .

NORP By letter dated DATE the applicant and PERSON appealed against the ORG decision to ORG , requesting that the claim for damages be rejected or at least reduced . They contended that the non - pecuniary damage suffered by PERSON was not due to the applicant ’s article but the result of the crimes he had committed .

On DATE ORG partly accepted the applicant ’s appeal and ordered him to pay J. , jointly with ORG , ORG CARDINAL plus interest as well as ORG CARDINAL,CARDINAL for costs and expenses . Moreover , the applicant alone was ordered to pay J. costs and expenses in the amount of LAW . The court found that information about a person ’s mental health was sensitive information the publication of which , together with ORG name , was conducive to causing PERSON suffering . The applicant ’s conviction and order to pay non - pecuniary damages to J. did not represent an unreasonable sanction , even bearing in mind that the case concerned an exception to the freedom of expression . The fact that PERSON had given an interview to a magazine prior to the publication of the impugned article had caused him suffering already . The applicant could be held responsible only for the additional suffering caused to PERSON thereafter by the impugned article .

On an unspecified date all parties to the proceedings appealed to ORG .

On DATE ORG refused leave to appeal .

DATE ( NORP perustuslaki , PERSON grundlag , Act no . MONEY ) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed , which has not been determined punishable by an LAW at the time of its commission . The penalty imposed for an offence shall not be more severe than that provided by an LAW at the time of commission of the offence .

Article CARDINAL of the LAW guarantees everyone ’s right to private life . According to it ,

“ Everyone ’s private life , honour and the sanctity of the home are guaranteed . More detailed provisions on the protection of personal data are laid down by an Act .

The secrecy of correspondence , telephony and other confidential communications is inviolable .

Measures encroaching on the sanctity of the home , and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime , may be laid down by an LAW . In addition , provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home , at trials and security checks , as well as during the deprivation of liberty may be laid down by an LAW . ”

Article CARDINAL of the LAW concerns the freedom of expression and provides the following :

“ Everyone has the freedom of expression . Freedom of expression entails the right to express , disseminate and receive information , opinions and other communications without prior prevention by anyone . More detailed provisions on the exercise of the freedom of expression are laid down by an Act . Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act .

Documents and recordings in the possession of the authorities are public , unless their publication has for compelling reasons been specifically restricted by an Act . Everyone has the right of access to public documents and recordings . ”

Chapter DATE , section CARDINAL , of LAW ( rikoslaki , strafflagen ; Act no . CARDINAL/CARDINAL ) reads as follows :

“ Dissemination of information violating private life : A person who unlawfully ( CARDINAL ) through the use of the mass media , or ( CARDINAL ) in another manner publicly spreads information , an insinuation or an image of the private life of another person , such that the act is likely to cause that person damage or suffering , or subject that person to contempt , shall be convicted of injuring personal reputation and sentenced to a fine or a maximum term of CARDINAL years’ imprisonment .

The spreading of information , an insinuation or an image of the private life of a person in politics , business , public office or a public position , or in a comparable position , shall not constitute injury to personal reputation , if it could affect the evaluation of that person ’s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society . ”

According to the travaux préparatoires ( see government bill HE CARDINAL ) , the content of this provision corresponds to the former LAW , section CARDINAL(a ) , of LAW . The amendments and clarifications made to the existing provision were mainly technical . The provision thus still restricts the protection of the private life of persons exercising important political or economic powers . Functions in respect of which the protection of private life is narrower in scope under paragraph CARDINAL include political functions , business functions and public functions or duties . The matter must have social significance . This restriction , however , applies only to the persons referred to , not to their close friends and family . According to ORG ( lakivaliokunnan mietintö , lagutskottets betänkande PERSON CARDINAL/CARDINAL ) , the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions .

NORP The government bill HE CARDINAL further provides that in the assessment of interferences with private life , the lawfulness of the interference and the concept of private life are taken into account . The publicity of a document does not automatically give the right to present in the mass media information concerning CARDINAL ’s private life included in the document . A person ’s consent to the provision of information has relevance in the assessment of the lawfulness of the interference . Without explicit consent , there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life ( see ORG Report LaVM CARDINAL/CARDINAL ) . Moreover , private life is , in particular , protected against dissemination of information which may be correct as such . In order for the act to be punishable , it is necessary that the information concerns the private life of the person in question ( see government bill HE CARDINAL ) . With regard to the concept of private life , a reference is made to the explanatory works concerning the Constitutional provisions on fundamental rights and to the government bill HE CARDINAL .

In the travaux préparatoires concerning the former LAW , section CARDINAL(a ) , of LAW ( see government bill HE CARDINAL ) , there was no precise definition of private life but matters such as , inter alia , family life , spare time activities , health and relationships and such conduct in socially significant positions that had no significance to the relevant exercise of power , were considered as a part of private life . It was further required that the act might have caused damage or suffering . Such damage might have also been “ immaterial damage , which might have manifested itself in problems with social interaction or respect ” . An ordinary person enjoyed the strongest protection of private life . His or her involvement in an incident of importance to society might have warranted an exception to the protection . In any case , if an offence was of such a kind that it could not be regarded as having social significance , it was a matter to be protected as belonging to the sphere of private life , otherwise the protection of private life did not restrict publishing . Moreover , the publishing could not be to a greater extent than was necessary . Thus , the necessity of mentioning a person ’s name or other description of a person enabling identification was always subject to careful consideration .

The Act on ORG ( laki viranomaisten toiminnan julkisuudesta , lagen om offentlighet i myndigheternas verksamhet ; Act no . CARDINAL ) contains provisions on the right of access to official documents in the public domain , officials’ duty of non - disclosure , document secrecy and any other restrictions of access that are necessary for the protection of public or private interests , as well as on the duties of the authorities to achieve the objectives of the LAW . However , there are specific provisions that apply to court hearings .

According to section CARDINAL of the Act on ORG in ORG ( laki oikeudenkäynnin julkisuudesta yleisissä tuomioistuimissa , lagen om offentlighet vid rättegång i allmänna domstolar ; Act no . CARDINAL/CARDINAL ) , the court decisions are public unless the court orders that they be kept secret . The parties and the public have the right to be present when the decisions are pronounced .

According to the preparatory works of the LAW ( see government bill HE DATE ) ,

“ ... the case files are to a large extent public and the publicity does not limit itself to publicity of oral hearings . On the other hand , in GPE the publicity of the case files does not automatically mean that all public documentation could as such , for example , without invading privacy , be published in the media . This right of the media to publish is limited not only by its self - regulation but also for example by the provisions of the LAW concerning the protection of privacy . It can , thus , be said that publicity is wider and the control of the protection of privacy is done mostly retrospectively . It is for the media themselves to consider which of the public documentation they shall publish . ”

Section CARDINAL of the Freedom of LAW ( painovapauslaki , tryckfrihetslagen ; Act no . CARDINAL/CARDINAL ) , as in force at the relevant time , provided that the provisions of LAW applied to the payment of compensation for damage caused by the content of printed material .

LAW , section CARDINAL , of LAW ( vahingonkorvauslaki , skadeståndslagen , Act no . CARDINAL , as amended by LAW no . CARDINAL ) , stipulates that damages may also be awarded for distress arising , inter alia , from an offence against liberty , honour , home or private life . Under LAW , section CARDINAL , of the said Act , damages shall constitute compensation for personal injury and damage to property . LAW provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury , as well as loss of income and maintenance and pain and suffering .

According to the government bill to amend LAW ( HE CARDINAL ) , the maximum amount of compensation for pain and suffering from , inter alia , bodily injuries had in the recent past been MONEY ( EUR CARDINAL,CARDINAL ) . In the subsequent government bill to amend LAW ( HE CARDINAL , p. CARDINAL ) , it is stated that no changes to the prevailing level of compensation for suffering are proposed . In the recommendation of ORG ( Henkilövahinkoasiain neuvottelukunta , PERSON ) in DATE , compensation awards for distress in defamation cases can go up to LAW and in cases concerning dissemination of information violating personal privacy up to LAW . On the other hand , the maximum award for , for example , attempted manslaughter , murder or killing varies between ORG CARDINAL,CARDINAL and EUR CARDINAL,CARDINAL .

The Union of Journalists in GPE ( ORG , PERSON ) publishes Guidelines for Journalists ( NORP ohjeet , PERSON ) for the purposes of self - regulation . The DATE Guidelines were in force at the material time and provided , inter alia , that matters falling in the sphere of private life , being detrimental to the relevant party or his or her near relative , should not be published unless the matters were of general significance ( Article CARDINAL ) . The principles concerning the protection of an individual also apply to the use of information contained in public documents or other public sources . Information being public does not always mean that it is freely publishable ( Article CARDINAL ) .

New Guidelines came into force in DATE , which noted that when publishing public material regard must be had to the protection of private life . Highly delicate information relating to one ’s personal life may only be published with the consent of the person in question , or if such matters are of considerable public interest ( DATE ) .

Also ORG ( GPE sanan neuvosto , PERSON för massmedier ) , which is a self - regulating body established in DATE by publishers and journalists in the field of mass communication and whose task it is to interpret good professional practice and defend the freedom of speech and publication , has issued a number of resolutions and statements , inter alia , in DATE and DATE . The former concerned the content of private life and the latter disclosure of names in crime news coverage .

In its statement of DATE , ORG stated , inter alia , that the protection of private life applies , in principle , to all citizens . The greater and more profound social implications a matter has , the more important it is to be able to publish information thereon . The ORG divided persons into CARDINAL groups as to the level of protection of identity : ( CARDINAL ) persons exercising political , economic or administrative power ; ( CARDINAL ) other public persons , for example in the sectors of entertainment , sports , arts or science ; and ( CARDINAL ) ordinary citizens . The ORG noted that the protection of identity is narrowest for group CARDINAL and most extensive for group CARDINAL . However , this scale was not to be used formally but the extent of protection should be interpreted on a case by case basis . A person ’s position had a great significance in determining the protection of private life but that alone could not be considered as a decisive factor . The significance of a matter also had an important impact . The conduct of a well - known person appearing in public in connection with his or her professional tasks or public role does not as such belong to such person ’s protected sphere of private life . On the contrary , information concerning lifestyle does normally belong to such person ’s sphere of private life even though his or her sphere of protection is narrower than that of an ordinary citizen . In some cases information concerning a person ’s lifestyle can be closely connected to his or her professional tasks in a way that its publication is justified . It is required , however , that the matter in question does have considerable general significance . Also , the publishing should not extend further than is necessary for the consideration of the matter . Finally , it is in accordance with good journalistic practice to see to it that the publishing does not cause undue suffering for the person in question or for his or her relatives .

On DATE ORG Recommendation No . Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . In points CARDINAL , CARDINAL and CARDINAL of the principles appended to the recommendation , it stated as follows :

“ The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial . Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”


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

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

In DATE the applicant bought the attic of a house on FAC , GPE . In DATE she obtained a building permit ( građevinska dozvola ) and built a new floor and a garage ; in DATE she also obtained a permit to use the newly built part of the building ( uporabna dozvola ) .

On DATE the applicant filed a request with ORG of ORG ( Zemljišnoknjižni odjel PERSON u GPE ) , asking that the newly built attic and garage be entered in the land register as her property . On DATE the applicant further asked that the change in the street name , from ORG , also be recorded in the land register .

When the applicant failed to comply with ORG invitation of CARDINAL DATE to submit all the documents necessary for it to comply with her request , the court dismissed the applicant ’s request on DATE . The decision expressly stated that the applicant would be able to have her ownership recorded in the land register once she submitted all relevant documentation . The applicant ’s subsequent appeal of CARDINAL DATE was dismissed by ORG ( Županijski sud u GPE ) on DATE .

Meanwhile , on DATE the applicant filed a constitutional complaint in respect of the length of proceedings . On DATE ORG ( Ustavni sud PERSON ) declared the applicant ’s complaint inadmissible . It found that a constitutional complaint was not allowed in respect of the proceedings in question , since the decisions to be adopted in those proceedings were not individual acts within the meaning of section CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , hereinafter “ LAW ” ) and thus not within its competence .

LAW , ORG no . CARDINAL of DATE ) provides :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

The relevant part of CARDINAL of LAW ( Ustavni zakon o FAC PERSON , ORG no . CARDINAL of CARDINAL DATE ) provides :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint , irrespective of whether 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 the 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 on which a request for payment is lodged . ”

Under the case - law of ORG as applied until DATE , constitutional complaints lodged under section DATE in the context of all land registry proceedings were to be declared inadmissible . In decision no . U - IIIA/CARDINAL/CARDINAL of DATE ORG changed its practice , accepting a complainant ’s constitutional complaint and awarding him compensation .


IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by a lawyer practising in GPE , the former GPE .

On DATE an individual brought criminal charges for defamation against the applicant , who at that time was a police officer .

In a summary procedure , on DATE ORG Skopje found the applicant guilty and sentenced him to CARDINAL months’ imprisonment suspended for DATE . It found that the applicant told a third person ( “ the witness ” ) that the complainant would be convicted and sentenced to CARDINAL years’ imprisonment and that he was unfit to carry a gun and that it would be seized . The court found the accusations credible and convicted the applicant of defamation . It , inter alia , stated :

“ ... the defendant [ name ] on DATE visited the witness [ name ] at his work in the elementary school ... on which occasion he made untruthful statements about the complainant [ name ] and told him that the latter would be sentenced to DATE imprisonment and that he was unfit to carry weapons and his pistol would be taken away ... The court finds that the accused [ name ] and the witness [ name ] took part in the incident by taking into account the clear and precise statement of the witness [ name ] who described the critical incident and the defendant ’s statement , who states that he did meet with the witness on the stated day ... ”

Before the decision was reached , on DATE , the court held a public hearing , which was attended by the complainant , the applicant and the witness to whom the defamatory statements were allegedly made . The applicant ’s lawyer was not present at the hearing . She had not been properly summoned , which the court expressly noted in the minutes . However , despite the absence of the applicant ’s lawyer , the court held the hearing as the applicant had been warned at the previous hearing held on DATE that the ( next ) hearing would be held even in the lawyer ’s absence , as legal representation was not compulsory and as the applicant had failed to secure the presence of his lawyer . The applicant did not explicitly object to the hearing proceeding in the absence of his lawyer . He did not ask for an adjournment and consented to giving evidence and himself put questions to the witness .

In his evidence to the court , the applicant stated that he had been served with the criminal complaint , but that he was not able to judge whether to remain silent or to defend himself . He rejected the accusations and declared himself not guilty . He stated that he had known the complainant for DATE and they had recently met more often , as he was divorcing and was asking for some consultations with the complainant who was a retired lawyer . He started seeing the complainant ’s daughter . Their relations became troubled when the applicant allegedly refused the complainant ’s proposal to transfer some property to the name of his daughter . He admitted that he occasionally saw the witness while on official visits to the school where the latter worked , but that he did not make any of the alleged defamatory statements to him .

The complainant stated that he had only known the applicant for DATE and that he visited his house occasionally . As the applicant allegedly had asked him to found a company to enter into business relations with the underground in some neighbouring countries , he stopped all contact with him . After DATE , the complainant complained to the police authorities that the applicant was peering into his house , due to which internal disciplinary proceedings within ORG were instituted against the latter . The event was noticed by the witness , who was a neighbour . He confirmed that , during the disciplinary proceedings , the applicant visited him several times in the school and threatened him to make him withdraw the statement . In the course of those visits , the applicant made untrue statements about the complainant to the witness which were the subject of criminal charges .

The witness confirmed that the applicant was the one who peeked into the complainant ’s house , about which he made a statement to the police authorities . The applicant allegedly visited him several times at the school in order to persuade him to be objective and not to make statements against him in the disciplinary proceedings . He stated that the applicant did not tell him anything against the complainant , except not to be under his influence and to give an objective statement in the disciplinary proceedings . He also said that he thought that the applicant had mentioned to him that a gun would be seized from the complainant and that he would go to prison , but that he did not understand how would that be done and by whom . He received neither threats nor anything else from the applicant . He was also contemplating to complain to the police authorities about the applicant ’s visits . He , inter alia , stated :

“ ... Sometime after that incident , the defendant ... visited me at work , and if I can say so , to pressure me because I understood he found out that a disciplinary procedure was initiated at his work place . He was telling me to be impartial and not to take the side of [ name ] the complainant , since he was my neighbour and he would definitely try to influence me to give a statement against him . During all those meetings , the defendant [ name ] was showing me pictures illustrating that he was in contact with the complainant ’s [ name ] family . He was telling me about [ name ] his daughter , but he did n’t tell me anything about the complainant [ name ] . I repeat again that regarding the complainant [ name ] all he was saying was not to be under his influence and to give an impartial statement in the disciplinary procedure . That is all he was telling me . I say that he did not tell me anything regarding the complainant [ name ] as a person . I can not quote him precisely , but I think that at CARDINAL occasion , the defendant [ name ] mentioned that allegedly the complainant ’s [ name ] pistol would be taken away and that he would be going to prison . But I did not understand in which context and by whom and in which way this would be done . ”

The court refused the applicant ’s request to summon several witnesses for the purpose of describing his relations with the complainant and his daughter as irrelevant for the offence of which he was accused .

The applicant appealed the court ’s verdict on , inter alia , the following grounds : that the trial court violated his right to defend himself as he was tried in the absence of his lawyer ; that the court erred in establishing the facts , especially in that it based its decision solely on the witness ’s statement , which was not credible ; and that it failed to call and examine the witnesses as proposed by the applicant . On DATE ORG dismissed both the applicant ’s and his lawyer ’s complaints as ill - founded . Regarding the applicant ’s allegations of a violation of his right to defend himself before the trial court , ORG stated that :

“ ... according to TIME of the hearing held on DATE , the accused was warned that if he would not secure the presence of his lawyer for the hearing scheduled for DATE , it would be held in her absence , as legal representation for criminal offences of that type was not compulsory . As the accused , despite the warning of the trial court , failed to secure the presence of his lawyer , the court finds that the trial court has properly decided to hold the hearing in the absence of his lawyer for representation was not compulsory . Thus , it did not violate his right to defend himself ... ”

The court dispensed with a hearing , albeit applicant ’s request .

On DATE ORG refused the applicant ’s request to lodge a request for protection of legality with ORG .

Proceedings on the appeal

Article CARDINAL

“ ( CARDINAL ) A notification of the ORG ’s session will be given to the defendant and his lawyer , the person damaged as a complainant or to the private prosecutor who , within the period prescribed for the appeal or reply to the appeal , have requested to be informed about the session or have proposed a hearing to be held before the second instance court ( Articles CARDINAL to CARDINAL ) . The Chairman of the ORG or the latter may decide a notification about the ORG ’s session also to be given to the parties when they have not requested it or to the party which has not requested it , if their presence would be useful for any matter to be clarified ... ”

Article CARDINAL

“ ( CARDINAL ) The hearing before the second instance court will be held only if it is necessary for new evidence to be presented due to an erroneously or incompletely established facts or for the evidence be re - presented and there are no justified reasons for the case be referred back to the first instance court for a retrial .

( CARDINAL ) For the hearing before the second instance court the defendant and his counsel , the prosecutor , the person damaged , the defence attorneys and legal representatives of the complainant , the person damaged as a complainant and the private prosecutor are summoned , as well as the witnesses and experts whom the court will decide to be heard ... ”

Summary proceedings

Article CARDINAL

“ In the proceedings before the court in first instance for crimes of which a fine or imprisonment DATE is prescribed as a main punishment , the provisions of ORG CARDINAL to CARDINAL of this Code will apply . If these provisions do not otherwise provide , the other provisions of this Code will be accordingly applied . ”

Article CARDINAL

“ ( CARDINAL ) When the second instance court decides on appeal against the judgment of the first instance court delivered in a summary proceedings , both parties will be notified about the ORG ’s session only if the Chairman of ORG finds that the presence of the parties would be useful for the clarification of any matter ... ”

Defamation

Article CARDINAL

“ ( CARDINAL ) A person who expresses or spreads some untruth about another , which could damage his honor and reputation , shall be fined or sentenced to imprisonment of DATE .

( CARDINAL ) If the crime from par . CARDINAL is committed by means of the press , radio , television , or through other public media or at a public gathering , the offender shall be fined or sentenced to imprisonment of DATE .

( CARDINAL ) If the untruth that is expressed or spread is of such significance that it caused or could have caused severe consequences for the complainant , the offender shall be sentenced to imprisonment of DATE .

( CARDINAL ) If the accused proves the truth of his statement , or if he / she proves that he had reasonable grounds to believe in the truthfulness of what he had stated or spread , he shall not be punished for defamation , but may be punished for insult ( article CARDINAL ) , respectively for slight by reproach about a crime ( article CARDINAL ) .

( CARDINAL ) A person who falsely expresses or spreads about another that he/ she has committed a crime which is prosecuted in the line of duty , he/ she shall be punished for defamation , even though he/ she had had reasonable grounds to believe in the truthfulness of what he/ she expressed or spread , if the expression or spreading is not performed under the conditions from article CARDINAL , item CARDINAL . The truthfulness of the fact that another has committed a crime for which he/ she is prosecuted in line of duty may be proved only with a sentence that has come into effect and with other evidence only if the prosecution of the trial is not possible or is not allowed . ”