Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

PERSON , a NORP national , is a cardiologist and lives in GPE .

On DATE a GPE investigating judge charged her , together with CARDINAL other persons including Mr PERSON , with attempted murder , infringement of the arms and ammunition legislation and infringement of LAW DATE on the protection and control of nuclear substances .

On DATE the investigating judge remanded PERSON in custody . She was released , subject to court supervision , on DATE by decision of ORG of ORG .

On DATE the judge made an order finding that the CARDINAL persons charged , including the applicant , had no case to answer , as there was insufficient evidence against them .

In DATE or DATE Mr GPE went to the GPE police headquarters . He informed Chief Superintendent ( commissaire divisionnaire ) ORG , the Head of ORG , that PERSON had hired him to kill Mr PERSON , who was himself facing charges in relation to the attempted murder of ORG and was in custody in the ORG prison in GPE . PERSON volunteered to make a telephone call to PERSON home to discuss possible methods for carrying out the crime and to record the telephone conversation .

ORG accepted Mr PERSON ’s offer . Once the recording was in his possession , he informed his superiors of the threat to Mr PERSON , but did not reveal the identity of his informant or the existence of the cassette .

When questioned on DATE in connection with the investigation into the attempted murder of Mr PERSON , Chief PERSON told the investigating judge as follows :

" PERSON called [ PERSON ] at TIME from my office . He got her to talk about the case and the conversation lasted DATE . I recorded this conversation with a tape recorder . I have kept the tape recording in question , which I hold at your disposal . ... I wish to make clear that I did not report this tape recording to my superior officer . "

DATE , on the instructions of the investigating judge , he handed over the recording to the latter .

On DATE PERSON laid a complaint , together with an application to join the proceedings as a civil party ( constitution de partie civile ) , against Mr PERSON and Chief PERSON for invasion of privacy and breach of the confidentiality of telephone communications . She relied on ORG CARDINAL , CARDINAL and CARDINAL of LAW and on LAW ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the judge assigned to the investigation of the case made an order finding that there was no case to answer . He began by noting that the conversation recorded did not concern private life :

... the offences ( délits ) provided for and penalised under [ ORG CARDINAL - CARDINALo and CARDINAL of LAW ] require not only an actual interference with another ’s private life , but also the intention to infringe a fundamental individual right .

In this case , the transcript of the recording obtained by PERSON shows that what [ PERSON ] said , apart from a few spontaneous remarks unrelated to the general subject - matter of the conversation , was extraneous to the complainant ’s emotional or personal life . "

On the question of the alleged violation of LAW , the judge stated as follows :

" That provision expressly states that the protection of secrecy is extended to the person making the call or its recipient only if neither of them consents to the revelation concerned .

As CARDINAL of the participants in the conversation , PERSON , had , by handing over the recording to Chief PERSON , manifested the consent required by the aforesaid provision , the offence was not made out . "

On DATE appeal , ORG of ORG upheld the above - mentioned order on DATE , on the following grounds :

... as one of [ the participants in the conversation ] , GPE , had consented to this disclosure [ of the content of a telephone communication ] by voluntarily handing over to Chief PERSON the tape recording , the offence [ of breach of the confidentiality of telephone communications ] is not made out and the relevant order must be upheld in this respect .

... it appears that the conversation recorded between PERSON and PERSON ] is entirely extraneous to the emotional or personal life of the woman concerned . On the contrary , PERSON deliberately steered the conversation towards CARDINAL matters , the preparation of the murder or a smuggling scheme , thereby seeking to prompt the recipient of his call to confirm the statements which he had made to Chief PERSON ...

In these circumstances , it appears that at no time did PERSON try to make PERSON ] reveal a secret of her private , emotional , family or physical life , as he sought only to obtain statements concerning facts constituting serious breaches of the criminal law , matters which could not be classified as intimate . "

PERSON appealed on points of law ; she complained , inter alia , of procedural irregularities in the designation of the members of ORG .

On CARDINAL DATE ORG allowed the appeal and remitted the case to ORG , composed differently .

On DATE ORG again upheld the order finding that there was no case to answer , on the following grounds :

" The transcript of the tape recording made by GPE in the office of GPE Aimé - Blanc reveals that , apart from a few spontaneous remarks unrelated to the general subject - matter of the conversation , the words spoken at her home by PERSON allude to a plan to commit murder and to a smuggling operation . PERSON deliberately steered the conversation towards these CARDINAL subjects and systematically brought [ PERSON ] back to them during the call . [ PERSON ] was thus asked a series of questions through which GPE tried to get her to confirm the allegations which he had made to the superintendent ;

The mutually corroborative statements of PERSON and PERSON establish that the latter agreed to the disclosure of this conversation ;

I. The alleged interference with the intimate side of the civil party ’s private life

In the first place , the offence punishable under LAW requires an actual interference with the intimate side of another person ’s private life . The unlawful viewing or interception must involve situations , activities , attitudes or words revealing states of mind , feelings , opinions or occupations which there is a legitimate desire to confine to a restricted circle , and which relate to family life , personal relations , personal finances , thought , health and leisure ;

That is not the case of remarks relating to a criminal conspiracy likely to lead to an attempt on the life of a third person and to prejudice public order ;

Consequently , in this case , the words spoken by PERSON at her home and recorded without her knowledge by PERSON , who had called her with the sole purpose of talking about a plan to murder Mr PERSON of which she was allegedly the instigator , and who had systematically kept the conversation on that subject and that of a smuggling operation , fall outside the sphere of private life ;

It follows that GPE is not guilty of the offence ( délit ) of invasion of privacy ;

Secondly , the retention and disclosure of recordings or documents obtained by stealth or without the knowledge of another person are punishable under the first paragraph of LAW only when they relate to the intimate side of that person ’s private life ;

The tape recording of the conversation between the complainant and PERSON contains remarks which manifestly have no connection whatsoever with the private lives of the persons involved ;

Consequently , PERSON is not guilty of the offence of which he is accused ;

II . The alleged breach of the confidentiality of telephone communications

While it is an offence under LAW for a third person to divulge the content of telephone calls , the confidentiality of which the provision is designed to protect , either of the interlocutors may agree to disclosure , which then ceases to be criminal ;

In the present case , it being noted that the complainant has not criticised in this respect the decision that there was no case to answer , PERSON is not guilty of the offence in question , since it was established during the proceedings that PERSON had implicitly agreed to the possible disclosure of the telephone conversation by handing over voluntarily the recording made on his own initiative for that very purpose ; "

PERSON lodged a further appeal on points of law , which ORG dismissed on DATE .

The first ground of appeal was based on the violation of LAW and again related to the composition of ORG . ORG took the view that the submission was unfounded .

The second ground of appeal , based on the violation of ORG CARDINAL and CARDINAL of LAW and LAW , related to the reasons given in the order finding that there was no case to answer ; the submission was worded as follows :

" ... the contested decision found that ORG and PERSON had no case to answer in respect of the charge of invasion of PERSON ] privacy ;

firstly , the act of invasion of another ’s privacy is perpetrated by the recording of words spoken in a private place and in the absence of the consent of the person who pronounces them as regards the recording of his statements ; ...

secondly , the decision , which ... recognises ... that the alleged murder plot was not the sole subject of the telephone conversation in question , but does not report the statements extraneous to that purpose which could strictly concern the private life of the complainant , does not make it possible for ORG to carry out its review and does not satisfy the essential conditions for its legal validity ;

and finally , the decision , which states that ‘ the words spoken by PERSON ] at her home ... fall outside the sphere of private life’ whereas it notes elsewhere that the telephone conversation included ‘ spontaneous remarks unrelated to the general subject - matter of the conversation’ , and which thus recognises that statements were made which were capable of concerning the strictly private life of the complainant , is vitiated by a contradiction and does not satisfy the essential conditions for its legal validity ; "

ORG declared the submission inadmissible , for the following reasons :

" The wording of the impugned decision makes it possible for ORG to satisfy itself that , in order to uphold the investigating judge ’s order , ORG , after examining all the facts alleged by the complainant , replied to the main arguments in the latter ’s memorials and stated the reasons on the basis of which it considered that it was able to infer that the constituent elements of the offences of which the defendants were accused had not been made out ;

Under LAW , in the absence of an appeal by the prosecution , a civil party is barred from contesting independently the merits of such grounds in support of an appeal to ORG against a decision of that type , even if those grounds contain errors of law or are contradictory ; "

CARDINAL provisions of LAW are relevant to this case :

" It is an offence punishable by a term of imprisonment of not DATE and not DATE and by a fine of MONEY and not MONEY , or by CARDINAL of the above penalties only , intentionally to interfere with the intimate side of another person ’s private life :

CARDINAL By intercepting , recording or transmitting with any kind of device words spoken in a private place by another person without that person ’s consent ;

" It is an offence , punishable by the penalties set out in LAW , knowingly to keep , to bring , or intentionally to allow to be brought , to the attention of the public or of a third person , or to use publicly or otherwise any recording or document obtained by means of CARDINAL of the actions described in that Article .

" ... any person who reveals secrets entrusted to him by reason of his status or profession , or of his temporary or permanent duties , except in those cases where he is obliged or authorised by law to lay an information , shall be liable to a term of imprisonment of not DATE and not DATE and to a fine of MONEY and not MONEY .

Since the events in this case the relevant NORP case - law and legislation have evolved .

By its PERSON judgment of CARDINAL DATE , ORG held that " although ORG and CARDINAL of LAW permit an investigating judge to order , subject to certain conditions , the interception or recording of telephone conversations , no statutory provision authorises officers of the criminal investigation branch to carry out such operations in connection with a preliminary police inquiry " ( ORG . ) no . CARDINAL ; PERSON ( ORG ) DATE , informations rapides , p. CARDINAL ) .

On DATE , ORG , in plenary session , declared void telephone tapping which had not been effected as part of a judicial investigation :

It appears from the impugned judgment and the evidence produced in the proceedings that , having been informed that PERSON was engaged in drug - trafficking and had in particular had as a customer PERSON , the police , on their own initiative , requested ORG to telephone PERSON with a view to fixing a rendez - vous for a drugs delivery and recorded their conversation on cassette , then drew up a report on this operation ; at the time fixed for the rendez - vous , the police were therefore able to follow ORG into ORG ’s home , arrest the occupants and proceed with a search ;

In order to refuse to annul the report describing the interception and recording of this conversation , ORG held that the police had not used a technical device to intercept and record all the telephone conversations conducted from a subscriber ’s telephone ;

In making this ruling , when , without having obtained a warrant for this purpose from a judge , the police had , unknown to PERSON , intercepted and recorded statements made by him on a telephone line which had been assigned to him , ORG disregarded the above - mentioned provisions . " ( ORG . no . CARDINAL ; PERSON , case - law , p. CARDINAL )

Law no . CARDINAL of DATE concerning the confidentiality of telecommunications did not amend Articles CARDINAL , CARDINAL and CARDINAL of LAW , but introduced a new LAW which is worded as follows :

" Any depository or agent of the public authorities , any agent of the public telecommunications operator or any agent of another operator of an authorised telecommunications network or of another provider of telecommunications services who , acting in the performance of his duties or on the occasion of the performance of his duties , has ordered , committed , or facilitated , in circumstances not covered by the cases provided for by law , the interception or diversion of communications issued , transmitted or received through telecommunications technology , or the use or disclosure of their content , shall be liable to a term of imprisonment of not DATE and not DATE and to a fine of MONEY and not MONEY .

Under LAW ,

" Any person who , without the authorisation of the person making the communication or the recipient thereof , discloses , publishes or uses the content of a communication transmitted by radioelectric means or reveals its existence shall be liable to the penalties prescribed in LAW . "

This provision was repealed by the above - mentioned LAW DATE .

LAW provides as follows :

" Everyone has the right to respect for his private life .

Judges may , without prejudice to a right to compensation for the damage sustained , order any measures , such as seizure , attachment and others , that may prevent or cause to cease an interference with the intimate side of private life ; in the event of urgency such measures may be ordered on an interlocutory application . "


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

In DATE the applicant petitioned for divorce from her husband as their relations had disintegrated . At that time , their son , born in DATE , lived together with the applicant ’s husband in CARDINAL room . The applicant with her daughter born from her previous marriage lived in a different room of the same flat . All family members commonly used the living room and the kitchen .

In TIME of CARDINAL DATE the applicant and her daughter found her husband and the boy naked in the living room . They noticed that the penis of the boy ’s father was erect . In fear that her husband had abused the boy , the applicant let him spend the night in her room and they slept at their neighbour ’s place on TIME .

On DATE the child was examined by a psychologist who concluded that he had suffered a psychological trauma . According to the report , the child had made a picture resembling an erect penis when asked to draw his family .

The applicant and her children started living at a different place .

On DATE the applicant filed a criminal complaint alleging that her husband had sexually abused the boy . The applicant submitted , in particular , that she had found both her husband and her son lying naked in their living room on DATE , and that her husband ’s penis had been erect .

On DATE ORG in PERSON placed the boy provisionally in the applicant ’s custody . It further prohibited the father from meeting the child .

On DATE ORG in PERSON , with reference to the child ’s statement , dismissed the complaint holding that nothing indicated that an offence had been committed . The police had before them , among other documents , an opinion submitted by an expert on DATE . In it reference was made to the boy ’s statement that his father had moved his penis as if playing a guitar while being naked when the boy had come to sleep in the father ’s room . The child further stated that the father had wanted him to watch him , but had neither touched the boy nor had he wanted the boy to touch him . In his opinion of DATE , the expert characterised the father ’s behaviour as sexually abusive . The expert later admitted that such conclusion could be drawn under the hypothetical assumption that the father ’s behaviour had been erotically motivated . Otherwise that behaviour was to be qualified as socially inappropriate .

The applicant filed a complaint against the above decision on CARDINAL DATE . She pointed out , in particular , that in his statement before an expert her son had affirmed that her husband had manipulated his sexual organ in the presence of the child . Her son displayed the syndromes of an abused child despite the fact that she and the child had moved to a different place . She also referred to the conclusion of a psychologist who had examined the child , at her request , on DATE . According to the psychologist , the child had suffered a serious psychological trauma .

On DATE the ORG quashed the investigator ’s decision .

In the course of the subsequent criminal proceedings the public prosecutor indicted the child ’s father for the offence of sexual abuse pursuant to LAW . According to the indictment , the accused , on DATE , had been lying naked in the living room with an erect penis and had masturbated , while his son had been lying undressed close to him . They had been found in that position by the applicant .

Throughout the investigation the father denied the accusation . He explained that he and the child had watched TV before going to sleep in TIME in issue . They had undressed as it had been very hot that day .

On DATE the ORG discontinued the proceedings as no offence had been committed . It referred to documents included in the file , such as statements of the applicant , her son and daughter as well as of the accused . It also had regard to CARDINAL expert opinions and the information submitted by an administrative authority . The court concluded that the action described in the indictment could not be qualified as sexual abuse under LAW ) of LAW . Finally , the decision stated that in criminal proceedings a court can assess only acts which are described in the indictment .

On DATE a court decreed the divorce of the applicant and her husband .

On DATE ORG in PERSON quashed ORG decision of CARDINAL DATE . ORG noted that CARDINAL expert opinions supported the public prosecutor ’s view that the applicant ’s son had been sexually abused . However , the file also comprised a third expert opinion , submitted in the context of proceedings concerning parental rights and obligations . In it the expert , who had examined both the parents and the child , had reached a different conclusion . With a view to having the relevant facts established , ORG instructed the prosecuting authorities to ask ORG to identify a suitable expert . It held that both parents should be examined by an expert , and that the applicant should be asked to explain why she had filed her criminal complaint DATE after the incident had occurred . The case was returned to the public prosecutor who re - transmitted it to the police investigator .

On DATE ORG in PERSON discontinued the criminal proceedings against the child ’s father as the action imputed to him did not constitute an offence . The police investigator heard the CARDINAL parents , the boy and the applicant ’s daughter and several witnesses .

According to the boy ’s statements , he had often been obliged to sleep together with the father when the latter had returned home intoxicated . On CARDINAL occasion , he had been obliged to sleep naked with the father as they had not found his pyjamas . His father had always locked the door . The boy stated that he had disliked sleeping with his father as the latter had been intoxicated and naked .

The applicant ’s daughter stated that , in TIME DATE , she had seen that her step - father had risen from the sofa with his penis erect and had run to his room at the moment when her brother had switched on the light in the living room . She affirmed that her step - father had in the past stayed with her brother locked in the bathroom and in his room .

In addition to the expert opinions mentioned above , the investigator had also regard to the opinion of a sexologist stating that the accused was heterosexually oriented and that he displayed no signs of sexual deviation .

As there were discrepancies in the various expert opinions , the investigator requested , in accordance with ORG instruction , ORG in GPE to submit an opinion on the relevant issues . The experts of the institute submitted their opinion of CARDINAL pages on DATE . The experts of the institute examined the boy , his father , the applicant and her daughter and assessed in detail the trustworthiness of their statements . They then commented on the CARDINAL opinions earlier submitted by different experts . In their conclusion , the experts of the institute held that the father ’s behaviour had not threatened the boy ’s mental development . They considered trustworthy the boy ’s statement according to which the father had neither beaten him nor had he touched his body or asked the boy to touch his genitals . As regards the alleged abuse of the child , the only reliable information represented the boy ’s statement according to which his father had moved his penis as if playing a guitar . It was impossible to establish when , in what context and how often such behaviour had occurred . In the experts’ view , it was however improbable that the child had observed his father masturbating . The experts further considered disputable the quality of CARDINAL expert opinions submitted earlier . As to the signs of neurosis which the boy had displayed in the past , the experts of the institute held that they did not prove that the child had been sexually abused .

On the basis of the above materials the police investigator concluded , in a decision of DATE , that there was no indication that the accused had behaved in a manner which could be qualified as sexual abuse under LAW ) of LAW .

On DATE the applicant filed a complaint . She argued that the investigator ’s decision did not correspond with the evidence taken in the criminal proceedings .

On DATE ORG in PERSON dismissed the applicant ’s complaint against the investigator ’s decision on the ground that the applicant was not entitled to file it . In a separate letter of the same date the public prosecutor informed the applicant , with reference to the opinion of the experts from the research institute , that he shared the view of the police investigator according to which her former husband had not sexually abused the boy .

Article CARDINAL of the Criminal Code governs the offence of sexual abuse .

Pursuant to paragraph CARDINAL , a person who has sexual intercourse with a person younger that DATE or who sexually abuses such a person in a different manner is to be punished with a prison term DATE .

Under paragraph CARDINAL , the prison term shall be DATE where a perpetrator commits the offence set out in paragraph CARDINAL in respect of a person placed under his or her authority and in abuse of the victim ’s dependence .

In practice , forms of sexual abuse other than sexual intercourse within the meaning of LAW ) comprise satisfying one ’s sexual drive by touching the body of the abused person , kissing or touching genitals provided that such actions are intensive .


Violation of Art. 2 (lack of independence of the investigating body during the initial stages of the investigation);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE . She was the mother of PERSON , PERSON and PERSON .

On TIME CARDINAL DATE , PERSON , PERSON and PERSON , sons of the applicant , were at home watching television . Between TIME , CARDINAL gunmen entered the house and shot all QUANTITY brothers . PERSON was shot CARDINAL times in the back and once in the legs ; PERSON was hit by CARDINAL - CARDINAL CARDINAL mm bullets in the neck and body : the autopsy report concluded that death would have been rapid in both cases . PERSON was hit CARDINAL times in the legs . When the gunmen had gone , PERSON made his way to a neighbour 's house to give the alarm . He later died of a brain haemorrhage in hospital on DATE , the autopsy report concluding that the wounds that he had received had played no part in his death .

On TIME , CARDINAL other NORP , PERSON , PERSON and PERSON were shot and killed in GPE , TIME after the attack on the PERSON ( see application no . CARDINAL ) .

Shortly after the events , police arrived at the scene and secured it . An ambulance removed the bodies .

Detectives arrived at the scene at TIME .

At TIME officers went to a vehicle on fire and on its being extinguished took the remains to a garage for inspection . Scene of crime officers examined the scene , recovering a number of spent cartridge cases and bullet heads and CARDINAL live round , which were sent for examination .

Forensic examination established that CARDINAL weapons had been used in the attack , CARDINAL of which had been used in previous incidents . Police believed the murders were carried out by ORG ( “ ORG ” ) , a proscribed loyalist paramilitary organisation .

House to house inquiries were carried out in the area and along the suspected escape route , and liaison made with officers involved in other killings of NORP in the area . Nothing of evidential value was obtained . A number of known loyalist activists were arrested and interviewed about the murders but no admissions were made . The police sent a report to the ORG on CARDINAL DATE . As no person had been identified as a perpetrator no - one was charged .

Inquests were held on DATE . Open verdicts were returned .

The investigation did not close and became active again in DATE , when a NORP priest Father PERSON was abducted by loyalist paramilitaries intending to use him as a hostage vis - à - vis the IRA . The police arrested a reserve police constable , PERSON , who , in the course of questioning , revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents . McCaughey made allegations that a police officer was involved in the NORP murders . This officer was arrested and questioned . He was charged with serious offences , resigned from the police and was subsequently convicted .

McCaughey 's revelations gave rise to investigations in CARDINAL specific cases , some of which were linked in terms of the identities of those involved , the modus operandi or by virtue of the ballistic examinations of weapons used . CARDINAL suspects were arrested in total , including QUANTITY police officers and all were eventually charged with offences .

One of those implicated was a police officer PERSON who was named as having been involved in the murder of a shopkeeper called PERSON in PERSON in DATE : he was convicted for that murder in DATE and sentenced to life imprisonment . The ORG stated that both PERSON and PERSON refused to name the CARDINAL loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution . The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with PERSON and PERSON . While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries , each again refused to do so unless there was something in it for themselves . The ORG stated that during the period in which PERSON was detained he was interviewed on a large number of occasions . At no time did he implicate himself or others in any offence other than the PERSON murder .

Apparently around this time , the applicant stated that Chief Superintendent PERSON of ORG ( " ORG " ) initiated a meeting with a member of the Reavey family and told him that he believed that CARDINAL McClures ( CARDINAL of whom was PERSON , a former Reserve Constable in the ORG ) and PERSON , also a former ORG , were involved in the attacks on the ORG as well as the attacks on ORG ( DATE see PERSON v. GPE , no . ORG ) and GPE ( DATE : see PERSON v. the GPE , no . CARDINAL/CARDINAL ) . He also named PERSON ( a former part time member of ORG , the “ LAW ) as the gunman who entered the house first . He said that CARDINAL of the men was going to turn Queen 's evidence if convicted of the LOC attack , an apparent reference to PERSON .

On DATE PERSON was released from prison on licence . In DATE , he made a statement to a journalist alleging ORG and GPE collusion with loyalist paramilitaries from the GPE area in DATE . This statement was published in the DATE ORG newspaper in DATE . It was obtained by ORG , a human rights non - governmental organisation in GPE ( “ the Centre ” ) .

PERSON statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents . He alleged inter alia that ORG Constable PERSON had told him that the murder of the NORP family members was carried out by PERSON , a member of the GPE , PERSON , PERSON , another Reserve Constable in the ORG and PERSON 's brother who was not a member of the security forces . The statement also made links between this incident and other attacks allegedly carried out by members of the security forces , both ORG and GPE , and loyalist paramilitaries . This group used the farmhouse in GPE owned by PERSON , a ORG reservist , as a base from which to carry out attacks on NORP and nationalists . Other attacks allegedly included the murder of PERSON and PERSON at a bogus vehicle checkpoint in DATE ( see application no . CARDINAL ) ; the attack on ORG in which PERSON , PERSON and PERSON were killed ( see application no . ORG ) ; the murder of PERSON , PERSON and PERSON and wounding of PERSON ( see application no . CARDINAL ) ; and the attack on FAC in which PERSON was seriously injured ( see application no . CARDINAL/CARDINAL ) . PERSON also linked these attacks to the GPE and GPE bombings in which CARDINAL people were killed in GPE .

On or DATE , ORG , an NORP television channel , broadcast a television programme that contained allegations of security force involvement in a number of deaths , including that of PERSON . PERSON made allegations on that programme that members of the ORG and GPE were directly involved in the attack on ORG . A ORG programme produced a similar documentary dealing with these allegations .

These allegations attracted considerable attention on both sides of the NORP border and became the subject of police investigation in both jurisdictions . The Government stated that the police investigation in GPE was focussed on determining whether PERSON 's allegations should be assessed as sufficiently credible to require a full investigation . They obtained from the journalist an edited transcript of the interview with PERSON . While his whereabouts were unknown to the ORG , PERSON met with senior NORP police officers at FAC on DATE . A copy of his statement was provided by the PERSON to the ORG , along with a further statement made by ORG to another journalist dated DATE . The police analysed the available materials and sought to identify the personalities to be interviewed . It became apparent that some had died and that others , living abroad , could not be traced . A series of CARDINAL interviews were conducted , under cautions , DATE , of those individuals central to ORG 's account who could be traced . No charges were preferred . The interviews followed the format of ORG 's allegations being put to the interviewee for his or her response . The predominant response was denial of any involvement and claims that ORG had been untruthful . No admissions were made by any interviewee . Interviews were also conducted with less central personalities and with police officers involved in interviewing PERSON in DATE . The latter stated that PERSON had not mentioned the matters now being alleged . Amongst those interviewed by the police in the course of the preliminary investigation of ORG 's allegations , CARDINAL person was questioned about the Reavey murders . He denied any involvement and made no admissions .

Meetings were held regularly with ORG counterparts in GPE . The ORG co - operated also with the judicial inquiry established in GPE into the GPE and GPE bombings ( see the description of the inquiry in the PERSON case referred to above ) . Amongst matters about which the ORG team provided information to the inquiry was ballistics information which linked some of the weapons used to CARDINAL incident . In DATE a substantial report was compiled by the ORG for the GPE dealing with PERSON 's allegations . It profiled PERSON and dealt inter alia with a description of the DATE investigation into ORG and others . It concluded that the investigation would continue but that his credibility was in doubt . According to ORG , despite inquiries being conducted , PERSON 's whereabouts could not be traced . This report was not disclosed as the investigation was continuing . An internal ORG report dated DATE concluded that it would be necessary to interview ORG before any view could be finalised in respect of the credibility of his allegations : such interview was not possible as his whereabouts were not known . The report noted the absence of any previous mention of the allegations before DATE and that much of what he said was hearsay and speculation . Enquiries made of ORG ( where he had a known address ) and the criminal intelligence service and others failed to locate PERSON . Contact was made with the PERSON and the secretariat of the Inquiry into the GPE and GPE bombings without positive result .

ORG ( " SCRT " ) was established in DATE , with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities . A preliminary case assessment was carried out by a detective chief inspector , who audited all known information and documentation .

In light of the preliminary assessment , the case was referred to ORG ( “ HET ” ) . On DATE , a Senior Investigating Officer reported on the further review ; a number of potential lines of inquiry were identified and recommendations made , including that the ORG should extensively interview PERSON . This recommendation was approved . The ORG director of ORG , Detective Chief Superintendent PERSON ORG , took over personal supervision of the investigation which has progressed through the first CARDINAL of CARDINAL stages of the HET process ( collection of all relevant material ; assessment of the investigations to date ; review of evidence , with intelligence and open and non - police sources , together with a meeting with the families of the victims of the attack ) . As a number of investigative opportunities were identified and to be followed up , the case was to continue to be processed by HET , which had been put in touch with PERSON by ORG The Government submitted that if any evidence of police involvement in the murders was found , ORG for GPE would then become involved . The Government have provided recent information that PERSON finally agreed to meet with the ORG in GPE ; he refused , however , to make a written statement or to give evidence in court .

There has been contact between the police and family members , their solicitors or the LOC . In particular , there were meetings on DATE with Chief PERSON ; on DATE with Detective Inspector PERSON and in DATE with Detective Inspector PERSON ; and in DATE and DATE with the Chief Constable ; members of ORG met with families or their representatives on CARDINAL DATE and CARDINAL DATE ; and there has also been extensive correspondence with the families or their representatives .

See PERSON , cited above ( § § CARDINAL - CARDINAL ) .

See PERSON , cited above ( § § DATE ) .


No 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;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant ’s son - in - law , PERSON , owns a construction company . In DATE he built a villa for GPE , a prominent politician , former prosecutor and deputy in the NORP parliament .

On DATE , the applicant wrote a letter to PERSON – the chief editor of a television programme ( “ GPE dla reportera ” ) . She stressed in particular :

“ For DATE PERSON has owed MONEY to a small construction company . On DATE ] he moved into a villa built by this company and until DATE , DATE , he has not paid MONEY . No one can help us . The deputies from the “ PERSON and ORG ( Prawo i sprawiedliwość ) do not reply to our letters , they are silent because how could they touch the great W. They believe in his lies and fibs , no one is persuaded that he owes MONEY ( PLN ) to poor , hard working people ( ... ) .

My son - in - law had contacts with different investors , but this is the first time in his life that he met such a greedy and mendacious person . He never expected such dishonesty from a public person DATE a deputy from the PERSON and ORG . This is why he [ GPE ] managed to trick him out of such a significant sum . ”

In a second letter , dated DATE , addressed to the President of the board of ORG , the applicant expressed the view that the media forgot about small enterprises that went bankrupt as they could not afford to pay the costs of civil proceedings . She further stated that :

“ PERSON managed to deceive and ruin CARDINAL [ ... ] NORP companies and to successfully intimidate their owners and employees . ”

PERSON was informed about both letters by NORP Television journalists , who asked him for his comments .

On DATE PERSON lodged a private bill of indictment against the applicant . He charged the applicant with defamation . In particular , PERSON submitted that in the letters sent to NORP Television on DATE and DATE the applicant had wrongly alleged that he had not paid PERSON ’s company . The applicant had also referred to his using words indicating dishonesty , deceitfulness and fraudulent actions on his part .

The applicant was tried by ORG . On DATE she was convicted of defamation under LAW . The criminal proceedings against her were conditionally discontinued and she was ordered to pay ORG MONEY to GPE She was also ordered to publish a written apology . In addition , the applicant was ordered to reimburse ORG CARDINAL to GPE for the costs of the proceedings .

NORP The trial court held that the content of the letter and in particular the expressions used , such as “ liar ” , “ greedy and mendacious person ” , “ dishonest ” could have resulted in GPE losing the public trust necessary for his political career . The background of this case was a civil dispute between ORG and GPE over the villa that the latter had built . The court noted that both parties had their arguments , more or less justified , but it was not the court ’s role to adjudicate on this conflict , since its final outcome was already before a civil court . The court further referred to expert evidence ( several opinions ) obtained in the criminal and civil proceedings from which it appeared that indeed part of GPE ’s allegations against PERSON as regards the quality of the construction works was substantiated . More importantly , the villa was not a faultless construction as claimed by the applicant and her family .

The court further held that it was impossible to accept that the words used by the applicant were true . They gave the applicant ’s private opinion about PERSON , which had no objective justification in the facts of the case . In addition , the court noted that the applicant could not have been mistaken about the genuineness of her statements as she was well aware of the civil dispute between PERSON and GPE The court also observed that the evidence before it had not confirmed in any way that CARDINAL companies had been ruined .

In the court ’s opinion the applicant ’s letters formed an unjustified personal attack on PERSON The applicant consciously circulated untrue facts concerning an alleged non - compliance with a financial obligation between PERSON and PERSON The allegations concerned the private life of GPE and therefore could not be protected in the same way as statements concerning his political activities .

The applicant appealed against her conviction . On DATE ORG partly upheld the first - instance judgment . However it ordered the applicant only to publish an apology and reimburse PERSON ’s costs . The court referred to the reasons given by ORG . It considered that the applicant ’s allegations were not true and the applicant had been aware of this . Furthermore , she had not acted in the public interest but had presented her personal negative and unsubstantiated opinion of GPE

On DATE J.D. lodged with ORG a claim against PERSON and his wife seeking payment of MONEY for the works carried out by his company .

On DATE ORG in a summary procedure ( postepowanie uproszczone ) ordered PERSON and his wife to pay PERSON the requested sum together with interest .

On the GPE appeal the case was transferred to the ordinary procedure .

On DATE the ORG gave judgment and dismissed PERSON ’s claim . The court held that the plaintiff ’s claims were unsubstantiated since , as proved by expert opinions , the construction works carried out by his company had been faulty . In addition PERSON had had to spend MONEY in order to repair the building . The court concluded that ORG could have requested to have this amount offset against ORG claim .

On DATE ORG upheld the firstinstance judgment and dismissed PERSON ’s claim .

Article CARDINAL of the Criminal Code provides in so far as relevant :

“ § CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics as may lower this person , group or entity in public opinion or undermine public confidence in their capacity necessary for a given position , occupation or type of activity , shall be liable to a fine , a restriction of liberty or imprisonment not exceeding one year .

§ CARDINAL . NORP If the perpetrator commits the act described in paragraph CARDINAL through the mass media he shall be liable to a fine , a restriction of liberty or imprisonment not exceeding two years . ”

Article CARDINAL provides as follows :

“ § CARDINAL . The offence specified in LAW is not committed , if the allegation made in public is true .

§ CARDINAL . Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in LAW CARDINAL or CARDINAL ; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone ’s life or to prevent the demoralisation of a minor . ”

On DATE ORG , ruling on a legal question referred to it by ORG , declared LAW compatible with ORG DATE read in conjunction with LAW . The court found that in some circumstances the protection of rights and freedoms like dignity , good name and privacy might prevail over the protection of freedom of expression . The ORG further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally effective as criminal law . Protection of personal rights by means of the criminal law did not by itself infringe the relevant provisions of LAW .