Violation of Art. 6-1;Inadmissible under Art. 6-1 with regard to criminal proceedings;Inadmissible with regard to the second applicant;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicants , PERSON and PERSON , a married couple , are NORP nationals . They were both born in DATE and live in GPE , GPE .

On DATE W.Ł. ( “ the petitioner ” ) filed an application with ORG ( Sąd Rejonowy ) , seeking a decision declaring that she had acquired a title to certain real property . The first applicant was one of the parties to the proceedings .

On DATE the ORG gave a decision . It declared that GPE and her husband GPE had acquired the title to the property which consisted of CARDINAL plots of land . The first applicant appealed against that decision .

On DATE the ORG ( PERSON ) set aside the first - instance decision and remitted the case in respect of CARDINAL of the plots . It dismissed the remainder of the first applicant ’s appeal .

The hearing listed for DATE was adjourned since the first applicant had been improperly summoned .

On DATE the court held a hearing . The first applicant was not present . At the next hearing , held on DATE , the court stayed the proceedings due to the death of GPE , one of the participants in the proceedings . On DATE the court held hearing and resumed the proceedings . The hearing fixed for DATE was adjourned at the petitioner ’s request . The trial court held further hearings on DATE , DATE , and DATE .

On DATE the court held a hearing . The first applicant failed to appear . The next hearing took place on CARDINAL DATE .

On DATE the ORG gave a decision ( postanowienie ) . It held that GPE and GPE had acquired the title to the property in question .

On DATE the first applicant asked for leave to file an appeal out of time . He claimed that he had been sick and he had not been able to lodge an appeal against the final decision within the prescribed time limit .

On DATE ORG held a hearing in the appeal proceedings . At a further hearing held on DATE , ORG dismissed the applicant ’s appeal of DATE .

Later , on an unknown date , the first applicant asked the Minister of Justice for leave to file a cassation appeal with ORG ( Sąd Najwyższy ) against the above - mentioned decisions of ORG . On DATE the Minister of ORG lodged a cassation appeal on the first applicant ’s behalf .

On DATE ORG quashed the decisions of ORG of DATE and CARDINAL DATE and remitted the case . It found that ORG had not summoned all the parties to the proceedings .

On DATE ORG held a hearing . It ordered GPE to produce certain documents . On DATE the court stayed the proceedings because ORG had failed to comply with that order . On DATE the ORG dismissed the first applicant ’s appeal against that decision .

On DATE ORG dismissed the first applicant ’s further appeal against the decision of DATE .

In a letter of DATE the applicants informed the ORG that the proceedings are still pending before ORG .

NORP In DATE the applicants requested ORG ) to institute criminal proceedings against PERSON and PERSON , complaining that the latter had destroyed their house and stolen their trees . On DATE ORG discontinued the investigation against the alleged culprits . On DATE ORG ) upheld this decision .

In DATE , following the ORG complaint to the Minister of ORG , ORG reopened the investigation . On DATE ORG again discontinued the investigation considering that no criminal offence had been committed . The applicants subsequently complained to the Minister of ORG about that decision .


Preliminary objections dismissed (non-exhaustion of domestic remedies, six month period);No violation of Art. 2 with regard to killing of applicant's husband;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant 's husband PERSON , was born in GPE ( south - east GPE ) and was a member of a well - known NORP family of NORP origin . He was a practising lawyer and a member of ORG . During his studies , he worked for ORG ( ORG ) and was a member of ORG ( Doğu PERSON ) . On that latter account , he was arrested in DATE . He spent DATE in prison , but was finally acquitted . Following his acquittal , he took no further active part in politics .

On DATE , at TIME , PERSON left his office in the central part of GPE to drive in his private car to his home located in a different part of the town . Before he left his office , he spoke to several persons including the applicant who had telephoned him at TIME .. He gave his office assistant PERSON a lift . As the applicant 's husband had just enough petrol to get home , he dropped Güngör S.E. off somewhere on the way .

When PERSON failed to return home , the applicant and Güngör GPE inquired at local hospitals and police stations in the course of TIME , but were unable to obtain any information about his whereabouts . As the applicant was concerned that her husband had met with the same fate as PERSON from DATE who had disappeared DATE previously and whose body had been found soon after DATE she telephoned around TIME PERSON , the ORG Minister responsible for Human Rights and a friend of the family , and asked him for help . The first thing Mr PERSON said was : " This can not have been done to PERSON ... " , which frightened the applicant even more .

On DATE , at TIME respectively , the applicant received CARDINAL anonymous telephone calls . No one spoke on the other end of the line . During the second call , the applicant could hear the sound of typewriters . At TIME the telephone rang again . When the applicant answered , a woman said , " I am the depths of hell " , and then put the receiver down .

DATE , at TIME , road workers found the body of PERSON along the GPE TEM highway in Gölbaşı on the outskirts of GPE , i.e. QUANTITY from the PERSON neighbourhood and QUANTITY in the direction of LOC . They informed the police . PERSON had been shot and killed . His car was found at a distance of QUANTITY from the place where his body was found . The petrol tank was empty .

On DATE , the ORG public prosecutor opened a criminal investigation into the death of PERSON .

According to the applicant , the buttons of PERSON coat were done up when his body was found . His identity documents , a small quantity of cash and his spectacles were missing . His ring and a valuable watch were returned to the applicant by the police .

On a sketch map drafted by a police officer , dated DATE , it is recorded that CARDINAL bullets were found directly next to the head of PERSON .

In the police report on the finding of PERSON body , dated DATE , it is recorded that no weapon and no empty cartridges were found near to or within a radius of QUANTITY from the body , and that his car was found at a distance of QUANTITY from the spot where the body was found .

An autopsy on PERSON was carried out on DATE . He was identified by his paternal cousin , PERSON It was concluded that he had died of bullet wounds to the head and chest . The autopsy report does not include any indication of the estimated time of death . In the autopsy report , CARDINAL bullet entry wounds , CARDINAL bullet exit wounds and CARDINAL bullet graze wound were recorded . In the course of the autopsy CARDINAL deformed bullets and CARDINAL bullets which were not deformed were removed from his body . These bullets were described as having blue painted tips and a diameter of probably QUANTITY . The bullets were given to the prosecutor in whose presence the autopsy was conducted . A blood sample was taken for examination for traces of alcohol , stimulants and depressants .

In a ballistics report of ORG ( ORG ) of GPE , dated DATE , it is recorded that CARDINAL ORG type bullets of CARDINAL PERSON calibre as well as CARDINAL outer layers of the same type and bullet calibre were submitted for a ballistics examination in relation to the killing of PERSON . As to the findings of the examination , the report states that all bullets examined had been fired from the same weapon , and that these bullets did not bear any resemblance to any other bullets previously examined by ORG . The report further states that it could not be confirmed nor excluded with absolute certainty , given the lack of adequate comparative material , that these bullets had been fired from a Uzi weapon of NORP make . The bullets , however , were found to be of NORP make . The report further states that the items examined were being archived under code nr . CARDINAL .

On DATE , the typewriter that PERSON used in his office was examined by ORG . The examination of the typewriter ribbon disclosed only a petition concerning a compensation case .

According to a supplementary autopsy report of DATE , no traces of alcohol , stimulants or depressants had been found in PERSON body .

DATE and DATE , the police took statements from CARDINAL persons , including the applicant .

NORP In a statement taken on DATE by the police from Hacı PERSON , one of the CARDINAL road workers who had found the body of PERSON , Hacı ORG declared that , at TIME , he and his colleague PERSON had spotted the body on the banks of the highway and had informed the traffic police . They had also found a red car QUANTITY from the location of the body . They had not seen anyone in the vicinity of the body or the car .

In a statement taken on DATE by the police , PERSON confirmed the account given by his colleague PERSON

In a first statement taken on DATE by the police from PERSON assistant PERSON , the latter declared that he had known PERSON since DATE , and that PERSON had dealt with compensation cases . He further stated that PERSON used to carry a gun whenever he travelled to another city , but that he never carried a gun in GPE . PERSON had once asked PERSON what he would do if the ORG ( Partiya ORG Party of GPE ) demanded money from him . PERSON had replied that he would pay up , but that he would also inform the police . According to PERSON , PERSON had not been involved in politics and had no connections with illegal organisations .

In a second statement taken by the police on DATE , PERSON stated that PERSON had practised law in GPE since DATE and that his law practice mostly dealt with compensation cases . PERSON had an account at ORG of ORG , a safe deposit box at LOC of ORG , and a further account at ORG . He owned CARDINAL apartments and CARDINAL cars , and had CARDINAL offices . According to PERSON , PERSON had no enemies . He had no knowledge of anyone ever having threatened PERSON .

Güngör S.E. further stated that , in DATE or DATE , PERSON had started to call PERSON . Their first meeting took place in the office of PERSON meetings were held in the office of PERSON , and over dinner with others in GPE in GPE . They also had meetings in GPE office in GPE .

In DATE , PERSON had been involved in the case of PERSON nephew , PERSON , who had been accused of carrying guns without a licence . PERSON had attended the funeral of PERSON . Since the latter 's funeral , there had been no further contacts between PERSON and the PERSON family , but PERSON had asked his brother PERSON , who was also a lawyer as well as a member of ORG of the political party DEP ( Demokrasi Partisi ) , whether there was any news about the killing of PERSON .

Güngör S.E. further stated that , on DATE , he and PERSON had gone to ORG . After their return to the office , PERSON had a meeting with his cousin PERSON In the afternoon , PERSON received telephone calls from the applicant , the husband of a niece , as well as from his son and his sister . PERSON had not found these calls suspicious . At TIME , he left the office together with PERSON , who gave him a lift . The applicant called him at TIME , wondering where PERSON was . Suspecting a traffic accident , PERSON checked with several police stations located on the way to PERSON home , but with no success .

At TIME went to the applicant 's house , where he found the applicant , PERSON , and friends of the applicant 's daughter . PERSON arrived later . The persons present then started to speculate on PERSON whereabouts . According to PERSON , he could have been kidnapped by the ORG , and there might be a connection with PERSON . According to others , he could have been kidnapped by the MİT ( PERSON ORG ) or by counter - guerrilla agents .

Güngör S.E. later left the house to check with a police station and a hospital , but without any success . He returned to the applicant 's house TIME at TIME At TIME , there was a telephone call from the police inviting the applicant to come to the police station . The applicant refused to go . PERSON and GPE went to the police station where they were told that PERSON had been found dead .

In a first statement taken on DATE by the police from PERSON secretary PERSON , the latter declared that PERSON had called her on DATE asking her whether PERSON had contacted the office . The public prosecutor PERSON had called that morning asking her whether she had any information about PERSON . She replied that she did not . He then asked whether anything unusual had occurred . PERSON arrived at the office later and together they went to the police . She never witnessed anyone threatening PERSON . She further declared that PERSON and PERSON had been very close ; she initially thought that PERSON was PERSON son .

In a second statement taken by the police from GPE on DATE , GPE declared that PERSON law practice mostly dealt with compensation cases and that PERSON was a client . She further declared that on DATE PERSON had come to the office and had told her that PERSON had disappeared . He instructed her to take PERSON notebooks and mobile telephone . They then went to the police headquarters , to the department dealing with disappearance cases . She did not know who PERSON was , but she had seen this person 's address in a notebook used by PERSON previous secretary .

In a statement taken by the police on DATE , the applicant declared that in DATE she and her husband had moved from GPE to GPE and in DATE to GPE . Her husband had practised law in these CARDINAL cities . She further stated that , since DATE , her husband had not been involved in politics and that his law practice dealt mainly with civil law cases . She further related what had happened when her husband had failed to return home on DATE , referring among other things to the anonymous telephone calls she had received . She did not remember anyone having threatened her husband . Her husband had never said anything about having been threatened .

In a statement taken by the police on DATE from PERSON Ö. , the witness declared that he was running an estate agency together with PERSON He had met PERSON in DATE in the office of GPE C. , who was CARDINAL of PERSON clients . PERSON , who had recently become involved in buying and selling property , had been interested in buying a plot in PERSON . PERSON had no information about PERSON death .

In a statement taken on DATE by the police , PERSON confirmed the account given by his business partner PERSON

In a statement taken by the police on DATE from Hüdayi NORP , a doorman at the applicant 's residence , the witness declared that he had observed nothing suspicious about PERSON and had seen no strangers coming to or leaving PERSON home .

The statement taken by the police on DATE from PERSON , another doorman at the applicant 's residence , was similar to the CARDINAL given by his colleague PERSON

NORP In a statement taken by the police on DATE from ORG , a business man and a hometown friend of PERSON , the witness declared that he used to see PERSON quite often and that the latter 's brothers were involved in politics . He confirmed that PERSON and PERSON knew each other and that the CARDINAL of them had had several restaurant dinners together . He saw PERSON for the last time at ORG funeral in GPE .

In a statement taken on DATE from PERSON , a friend of the applicant 's family , the witness confirmed that she and others had been in the applicant 's house on TIME of DATE . She denied that anyone present that evening had mentioned the possibility that PERSON had been kidnapped by the ORG , ORG or counter - guerrilla agents .

In a statement taken on DATE from PERSON , another friend of the applicant 's family , she confirmed that she along with others had been in the applicant 's house on TIME of DATE . She denied having said that PERSON had been kidnapped by the ORG , ORG or counter - guerrilla agents .

In a statement taken by the police on DATE from PERSON PERSON , a paternal cousin of PERSON , he declared that he had visited PERSON in his office on DATE at TIME , and that PERSON used to deal with compensation cases against the ORG .

In a statement taken by the police on DATE from PERSON , a hometown friend and client of PERSON , the witness declared that PERSON and PERSON had twice met in his office and that the CARDINAL of them had dined together on CARDINAL occasion . He did not know what had been discussed between PERSON and PERSON during their meeting in his office . He did know that PERSON had been dealing with a tax case related to PERSON and with another case involving a relative of PERSON . PERSON further stated that he had been a personal friend of PERSON , but that they had had no business dealings with each other . He added that , in DATE , he had bought a hotel on behalf of a company from PERSON who was PERSON 's man ” . He had paid PERCENT of the purchase price to PERSON and PERCENT to PERSON . He had been unable to pay PERCENT of the purchase price .

In a statement taken by the police on DATE from PERSON , the latter gave a detailed description of how he had bought his apartment from PERSON on DATE .

On DATE , the ORG public prosecutor , who was in charge of the investigation , informed ORG that PERSON had been killed and that his bank accounts should be examined . The public prosecutor requested ORG to take the necessary measures without giving any further specifications .

By letter of CARDINAL DATE , the police informed the ORG public prosecutor that PERSON had a safe deposit box at ORG and requested the public prosecutor to seek judicial permission to open this box in order to verify its contents . On DATE , the public prosecutor recorded that this request had been turned down .

On DATE ORG informed the public prosecutor that , pursuant to LAW ) , information about private bank accounts was secret and , therefore , the prosecutor 's request of CARDINAL DATE could not be granted .

By letter of CARDINAL DATE , the ORG public prosecutor asked ORG to be kept informed of any developments in the investigation into the killing of PERSON until DATE , i.e. when a prosecution in relation to the killing would become statute - barred .

By letters of DATE , DATE , DATE , CARDINAL DATE and DATE , the Commissioner of the ORG local police station informed ORG that the enquiries in relation to the identification of the perpetrator(s ) conducted so far had proved unsuccessful , that they were still being actively sought and , if found , the victim 's family would be notified . These letters do not contain any details about the modalities of the police investigation .

On DATE , in reply to a request for information about the investigation filed by the applicant on DATE , the ORG public prosecutor informed the applicant that the investigation was still continuing .

On DATE , referring to a letter of ORG , the GPE deputy chief public prosecutor asked the ORG public prosecutor for information about the investigation .

On DATE ORG transmitted copies of documents related to the investigation – obtained from ORG and the ballistics report of CARDINAL DATE to the ORG public prosecutor , in response to the latter 's oral instructions .

On DATE , the ORG public prosecutor informed the GPE chief public prosecutor that the investigation of the killing of PERSON was still being pursued

In a letter of DATE , the ORG public prosecutor informed the GPE chief public prosecutor that , as in his statement of CARDINAL DATE ORG had mentioned that PERSON was related to PERSON , PERSON was to be summoned in order to clarify whether or not PERSON had a relative named PERSON

On DATE , the ORG public prosecutor requested ORG to send him the CARDINAL ORG type CARDINAL PERSON calibre bullets and the CARDINAL outer layers of the same type and bullet calibre that had been examined by ORG and subsequently archived under code nr . CARDINAL ( see LAW above ) .

In a brief statement given on DATE , PERSON declared that PERSON did not have a relative named PERSON

On DATE , the applicant requested the ORG public prosecutor for a ballistics comparison of the weapons found in the GPE accident ( see § § CARDINAL below ) and the weapon used in the killing of her husband .

On DATE , the ORG public prosecutor instructed LOC to compare the weapons found in GPE with the weapon used in the killing of PERSON .

In a report of LOC , dated DATE and sent to the ORG public prosecutor on CARDINAL DATE , it is recorded that a ballistics examination had established that the bullets used in the killing of PERSON had not been fired from the QUANTITY . calibre weapons found on DATE in GPE .

In an article published in the DATE newspaper “ FAC on CARDINAL DATE , the journalist PERSON wrote :

“ It all dates back to DATE . At that time the NORP Chief of Staff 's office made radical changes in its strategy in the fight against the outlawed ORG . The military units , which used to take action only after ORG attacks had taken place by engaging in hot pursuit , started to be organised as a guerrilla force . Now they were taking preemptive action . This change soon started to bear fruit . The ORG no longer had the initiative . Now the ORG was on the run with the soldiers at its heels .

The ORG gradually withdrew from the centres of population where it had been staging attacks , taking refuge in the mountains . But GPE 's “ active fight ” against terrorism was continuing . This time , the logistic support for the ORG in the mountains began to diminish through village evacuations . The ORG had been greatly weakened , and seemed to be on the verge of being “ finished off ” .

But the change in the strategy was not limited to a “ low - intensity conflict ” in the region . It was decided that a “ more active ” drive was required to dry up other sources of terrorism too . In this way , with a little effort , this job would be “ finished off DATE ” .

This would take the form of a CARDINAL - pronged effort . Terrorists would be caught – or killed if necessary DATE before they actually staged attacks . And the persons who provided the terrorists with material or moral support would be equated with the terrorists themselves .

This change in strategy was put on the agenda of ORG at DATE . A ORG document , which the author of this column was allowed to see , contains the chart of the organisation that was to be created for this purpose , as well as the names of the persons who would take part in it . These names included PERSON . The others taking part in the organisation included policemen belonging to the " special teams " , soldiers and some of ORG 's friends .

Initially , the proposed tactics did not meet with the approval of ORG . PERSON , at that time the President of GPE , and PERSON , at that time the Commander of ORG , both opposed the ORG taking action in co - operation with fugitives < from PERSON I guess this is pure coincidence , but first General PERSON and then GPE died , the former in an accident and the latter due to a heart attack .

PERSON became President and PERSON the Prime Minister . Initially , PERSON was quite mild on the south - east issue . She was talking about the NORP model and , with good intentions , having discussions with the opposition leaders on the issue . But after a short time she underwent a change . She became more hawkish than all of the other hawks , declaring , “ This < the ORG > will either be finished or it will be finished ” . It was obvious that she was convinced that it would end soon .

As there was no one around to raise objections any longer , the issue was again submitted to ORG . And this new technique of struggle was approved in DATE . The organisation , call it “ Gladio ” or " special organisation , " was founded by a decision taken by ORG .

According to figures released at that time , GPE was spending MONEY DATE on the fight against the ORG . No doubt the ORG was also spending a lot in its fight against GPE . Calculations made in the higher ORG echelons indicated that the ORG 's war budget was MONEY . In DATE , DATE in which PERSON became Prime Minister , the ORG had CARDINAL main sources of income : CARDINAL . money obtained through narcotics and extortion . CARDINAL . donations collected in LOC .

First the income from the NORP channel was cut off . At first , GPE and then GPE closed down the associations connected with the ORG and prevented them from collecting funds . In both countries the ORG went underground .

But there was also the income from drug trafficking . Here , the “ special organisation ” had to become active . We all remember that during those days PERSON was saying “ We will dry up the ORG 's sources of income ” .

PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON .

All of them were figures involved in drug trafficking in CARDINAL way or another . None is alive DATE . They were either involved in drug trafficking on behalf of the ORG or had to pay extortion money . In either case the ORG was getting income . All of these people are now dead .

The DATE newspaper ORG was a ORG mouthpiece . The ORG leader PERSON had a column in the paper , using the pen name , “ PERSON ” . The head office and the branch offices of that DATE have been bombed . It is being claimed that the GPE police caught the bombers but had to release them in line with “ orders received from high up ” .

This article has been written entirely on the basis of a document which I was not permitted to photocopy . I was not permitted either to take notes . I just had a chance to read it quickly . I wish that this piece of “ news ” , the truth of which I measure by considering a lot of other things , proves to be false . Naturally , I have no doubt that it will be denied immediately . I just hope that those who will be denying it will be telling the truth . ”

On DATE , the applicant informed the ORG public prosecutor that , given the articles published on CARDINAL and DATE in the DATE newspaper “ FAC , the journalist PERSON held information and documents in relation to the killing of her husband .

On DATE , the ORG public prosecutor PERSON asked the GPE public prosecutor to take a statement from ORG .

In a brief statement taken by a public prosecutor on DATE , PERSON declared that he had no information as to who killed PERSON Ekinci or how he was killed . He had only commented , in the atmosphere created by the GPE incident , that PERSON might have been killed by the “ GPE gang ” .

On DATE , the ORG public prosecutor requested ORG ( PERSON ) to provide him with a copy of the statement given in the course of the investigation conducted by this Commission by PERSON , the deputy head of ORG ( PERSON .

On DATE and acting upon the applicant 's request of DATE , the ORG public prosecutor requested ORG to identify the origin of the anonymous telephone calls received by the applicant on CARDINAL and DATE .

By letter of DATE , ORG informed the public prosecutor that it was technically impossible to identity these telephone numbers .

DATE . On DATE and referring to ORG newspaper article of CARDINAL DATE , the ORG public prosecutor requested ORG ( PERSON ) to provide him with the document referred to in the newspaper article , i.e. ORG document that ORG had been allowed to see and which contained the chart of the organisation that had been created as well as the names of its members . He explained that this document could be of relevance to the investigation into the killing of PERSON .

In a letter of DATE to the ORG public prosecutor , ORG denied the existence of the document referred to in the article written by PERSON .

By letters of DATE and DATE , the Commissioner of the ORG local police station informed ORG that the enquiries in relation to the identification of the perpetrator(s ) conducted so far had proved unsuccessful , that they were still actively being sought and that , if found , the victim 's family would be notified . These letters do not contain any details about the modalities of the police investigation .

In DATE , the Prime Minister received the report he had commissioned on the GPE affair ( see § § CARDINAL and § § CARDINAL below ) , according to which PERSON had been killed on the instructions of an unspecified NORP security organisation ( “ Türk LOC ” ) on the basis of a decision to eliminate CARDINAL businessmen suspected of involvement in financing the ORG , and whose names were set out in a nondisclosed list referred to in a public statement made on DATE in GPE by the former Prime Minister , PERSON .

On DATE , the Commissioner of the ORG local police station informed ORG that the enquiries conducted so far in relation to the identification of the perpetrator(s ) had proved unsuccessful , that they were still actively being sought and that , if found , the victim 's family would be notified . These letters do not contain any details about the modalities of the police investigation .

On DATE the ORG public prosecutor requested the GPE public prosecutor to identify , summon and take statements from the road workers and petrol station staff who had been on duty at the time of the incident .

In a statement taken on DATE , PERSON , the manager of a petrol station on the ORG highway , stated that he had been the manager of this petrol station for DATE and that the employees on duty at the material time no longer worked there . It does not appear from the record of this statement whether or not he was asked for the names of the former employees .

In a statement taken on DATE from PERSON , a traffic police officer who had been on duty on the ORG highway on DATE of the incident date , PERSON stated that he could not remember anything about the incident . Too much time had passed since then .

DATE . In a statement taken on DATE from the traffic police officer PERSON , he stated that he did not recall anything about the incident . He considered that it was probable that PERSON body had been found when he was not on duty . Similar statements were taken on DATE from the traffic police officers PERSON and PERSON

In a statement taken on DATE from PERSON , a traffic police officer who had been on duty at the relevant time , PERSON declared that he arrived at the scene of the crime after having heard the message on the police radio . The body had been lying in a ditch . He had not inspected the wounds on the body . The victim 's car had been located at a distance of CARDINAL from the body . He left the scene after the arrival of the police officers from ORG .

In a statement taken on DATE from PERSON , a traffic police officer on duty on DATE of the incident , PERSON İ declared that he arrived at the scene of the crime after having heard the message on the police radio . He had seen a dead body lying in a ditch . He had seen bullet wounds to the right and left cheek . The victim 's car had been located at a distance of QUANTITY from the body . He left the scene of the crime when police officers from ORG arrived .

On DATE , the Commissioner of the ORG local police station informed ORG that the investigation aimed at the identification of the perpetrator(s ) of the killing of PERSON had , so far , proved unsuccessful , that they were still actively being sought and , if found , the victim 's family would be notified . This letter does not contain any details about the modalities of the police investigation .

On DATE the GPE public prosecutor requested the ORG public prosecutor for information about the steps taken in the investigation of the killing of PERSON .

On DATE the ORG public prosecutor informed the GPE public prosecutor that the investigation was still continuing and , should the perpetrator(s ) be found , the GPE public prosecutor would be notified .

In a further statement taken on DATE from the traffic police officer PERSON , the latter declared that he had no information about the killing of PERSON . A similar statement was taken on DATE from PERSON , another traffic police officer who had been on duty at the relevant time .

On DATE , the Commissioner of the ORG local police station informed ORG that , so far , the enquiries in relation to the identification of the perpetrator(s ) of the killing of PERSON had proved unsuccessful , that they were still actively being sought and , if found , the victim 's family would be notified . This letter does not contain any details about the modalities of the police investigation .

The applicant wrote CARDINAL letters to the President of GPE requesting him to order an effective investigation into the killing of her husband and to bring the perpetrators to justice . In addition , she appealed for help to the Prime Minister and to the Speaker of ORG . These requests remained unanswered .

On DATE , the brother of PERSON , PERSON , and the lawyer PERSON wrote to the President of GPE voicing their continuing concerns and suspicions , and complaining that the investigation into the killing of PERSON was inadequate .

In DATE , during a Parliamentary session , the Member of Parliament PERSON , put questions in relation to the killing of PERSON to the then Prime Minister Mr PERSON . Mr Sağlar mentioned that it was common knowledge that PERSON had been killed by a CARDINAL type weapon and that a number of these weapons destined for use by the police had gone missing . He enquired whether these weapons had been acquired by GPE on the basis of a public tender , how many weapons had gone missing , who was responsible for the weapons and whether the ballistics characteristics of the weapons had ever been recorded . He further asked whether a ballistics comparison had been carried out between the bullets used in the killing of PERSON and the LOC weapons that had gone missing from the records of ORG .

In DATE , in reply to the questions put by PERSON , the Minister of the Interior , PERSON , declared that ballistics reports had revealed that the bullets used in the killing of PERSON were similar to those of the LOC weapons allegedly used by the GPE gang in other illegal incidents .

In a letter of CARDINAL DATE to the Minister of ORG , PERSON complained that the investigation into the killing of his brother was inadequate . He suggested inter alia that a team of independent investigators be formed to carry out investigation , that the case - file be transferred from the ORG public prosecutor to the public prosecutor of ORG , that a ballistics examination of all the CARDINAL type weapons in the possession of ORG be ordered in order to verify whether they matched the weapon used to kill his brother , and that statements be taken from road workers and petrol station staff on duty at the time when his brother was killed .

In a statement taken on DATE by the police , PERSON confirmed that he had written a letter to the Minister of Justice in relation to the killing of his brother . On DATE the GPE public prosecutor informed the ORG public prosecutor of the statement given on DATE by PERSON .

In DATE the applicant allegedly succeeded in contacting an eyewitness , namely a person who had been working at a petrol station situated on the road between PERSON office and his home . According to this witness , whose identity was not disclosed by the applicant , he had seen that a red ORG – PERSON car was a red ORG – had been stopped by a police patrol car , that the police officers had taken the driver from this car and that they had searched his clothes . After TIME , a policeman got into the ORG , which drove off together with the police patrol car . However , out of fear , this witness had refused to give a written statement . The account given by this witness was reported on the internet site of the DATE newspaper “ NORP ” .

Before the ORG the applicant referred to the so - called GPE incident and the domestic reports that have been produced in relation to this incident . These reports have been made available to the ORG in a number of other cases brought against GPE ( cf . Yaşa v. GPE judgment of DATE , Reports of Judgments and Decisions , CARDINAL-VI , GPE v. GPE [ ORG ] , no . ORG , ORG CARDINALIV , PERSON v. GPE , no . CARDINAL , ORG CARDINAL-III , GPE v. GPE , no TIME , PERSON v. GPE , LOC ORG , ECHR CARDINAL-X , and ORG v. GPE , no . CARDINAL/CARDINAL , ORG CARDINAL-VII ) .

GPE was the scene of a road accident on DATE involving a truck and a car . The CARDINAL passengers in the car were Mr PERSON , a member of ORG for the conservative ORG and close to PERSON , Mr ORG , the former deputy head of the GPE security services , Mr PERSON , a notorious far - right militant wanted by ORG for drug trafficking and by the NORP authorities for the killing of CARDINAL left - wing militants , and PERSON Us , Mr PERSON 's girlfriend and a former beauty queen . All passengers , except for PERSON , were killed .

The fact that they had been travelling together in the same car , that PERSON was found in possession of a licence to carry arms and a NORP senior officials ' passport , both documents signed by the Minister of ORG , and that various weapons of a model normally used by the police with matching silencers as well as money and drugs were found in the car had so shocked public opinion that it forced PERSON to resign as Minister of the Interior on DATE , and led the authorities to carry out comprehensive investigations into the accident and to commission investigations at different levels . These investigations have resulted in the so - called “ ORG ” .

In its decision No . CARDINAL of CARDINAL DATE , ORG ( Türkiye Büyük PERSON ) ordered the conduct of an official parliamentary inquiry into the “ relations between illegal organisations and the ORG and the accident in GPE ” . A Commission was set up from among the members of ORG . The ORG heard evidence from CARDINAL people , whose names had been implicated in the GPE affair in CARDINAL way or another , including GPE , PERSON and PERSON . ORG also instructed inspectors from ORG and ORG to carry out investigations on its behalf . ORG published its findings in DATE in ORG of ORG ” in DATE .

In the concluding remarks of this Report it is stated :

“ ... the uncontrollable forces were in collaboration with some public servants who worked for the ORG . The rising terrorist incidents in southeast GPE in DATE have also created an income - based terrorism . As to the unknown perpetrator killings , < the ORG > ORG stated in his evidence to the ORG that ' the intelligence services used to give us a list the night before and the gunmen would go in the morning and kill those whose names were on the list ' ... ”

According to an article published on DATE in the liberal DATE newspaper “ Milliyet ” , the answers given by the ORG in relation to the killing of PERSON had not been published in ORG .

The Prime Minister , in his letter no : B.CARDINAL.CARDINAL.MUS.CARDINAL/CARDINAL of DATE , ordered PERSON , the under secretary of the MİT to carry out an investigation into the allegations of the existence of an illegal organisation within the ORG and this organisation 's activities . A report ( No . ORG ) was prepared and submitted to the Prime Minister on DATE . Although this report was never officially made public , its contents were leaked to the press and are currently in the public domain .

This Report contained statements made by PERSON , the leader of ORG ) , who alleged that PERSON has set up an organisation comprising ORG members , police officers and members of the “ ORG ” ( PERSON ) . This organisation , known to its CARDINAL members – amongst whom PERSON , her husband PERSON , PERSON , the deputy - under secretary of the MİT , PERSON , the Director of ORG , and PERSON – as “ the ORG ” was responsible , according to PERSON , for the killings of many persons , including PERSON .

The ORG contains one page on which information on PERSON personal background and activities is set out . This pages states :

“ PERSON

Son of PERSON , and born in ORG in DATE .

In DATE he was a second year student at ORG , Faculty of Law . He was known as a pro - NORP socialist . In DATE he was a member of the “ youth branch ” of the TIP ( ORG ) which was established in GPE . He was further the editor of the “ LOC ” newspaper , the official bulletin of that party .

After his graduation in DATE , he went to ORG in order to finish his traineeship . In ORG he participated in an organised demonstration against the PERSON on the Protection of the LAW .

He was detained on remand in DATE < or > DATE and subsequently prosecuted on charges of involvement in pro - NORP activities in ORG ( ORG PERSON ) .

As from DATE he worked as a lawyer in ORG , where he tried to direct the NORP movement .

In DATE , during the CARDINALth ORG , he declared that he opposed the ideas of his brother PERSON , and added that his own objective was the creation of GPE and that he was a NORP nationalist .

Since DATE he worked as a lawyer in GPE .

In DATE he was expelled from the ORG ( PERSON Halkçı ORG Democrat ORG ) . He became involved in establishing a NORP party together with PERSON .

He was found dead on DATE close to the PERSON neighbourhood in ORG . ”

On DATE , Prime Minister PERSON , instructed PERSON , the vice - president of ORG and Control attached to ORG , to carry out an investigation into the GPE affair . ORG and his personnel studied the report prepared by ORG ( see § § CARDINAL above ) , the ORG report ( see § § CARDINAL above ) , and they conducted their own investigation . After receiving the report in DATE , the Prime Minister made it available to the public , though CARDINAL pages and certain annexes were withheld .

NORP The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .

NORP The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result , particularly in the drug - trafficking sphere . The ORG made reference to an individual PERSON , also known as PERSON , “ the Terminator ” or “ NORP ” detailing his involvement in unlawful acts in the south - east and his links with the MİT :

“ The bombing of the newspaper PERSON in GPE , the killing of PERSON , .... the CARDINAL credits of the banks are in reality the extension of diverse aspects of the action in GPE . ... The beginning of the GPE action might be hidden in a sentence of the Prime Minister at that time , PERSON . “ The list with the names of the businessmen helping the ORG is in our possession . ” she said . The executions began afterwards . Who decided the executions ? It was inevitable that a deterioration would occur and that personal interests would replace the national interests , and in fact they did . This report perceives the GPE incident in that manner . ( page CARDINAL)

Since the struggle in the region < of eastern and south - eastern GPE > and the ORG attacks created an ever increasing reaction , even in the western regions , it is possible to understand and excuse some of the attitudes of martyrs , the reaction and anger of the ORG forces fighting the ORG , and those living in GPE . It is in fact inevitable . However it is necessary to detail the incidents which took place in this complicated structure and the institutions participating in this natural , albeit complicated , scenery . By doing so , it will be possible to see the country 's fight with the ORG and the connection stretching to GPE , GPE and the financial relationships . ( page CARDINAL )

... Whilst the character of LOC and the fact that he , along with the group of confessors he gathered around himself , is the perpetrator of offences such as extortion , seizure by force , assault on homes , rape , robbery , murder , torture , kidnap etc . , were known , it is more difficult to explain the collaboration of the public authorities with this individual . It is possible that a respected organisation such as the MİT may use a lowly individual ... it is not an acceptable practice that ORG should have used LOC several times ... LOC opened an account at the GPE Branch of ORG in GPE under the name of PERSON in order to collect extortion money . The existence of this account appeared from ORG . ... PERSON , who carried out activities in GPE under the name of ORG , in GPE under the name of ORG and used the name PERSON , is an individual whose activities and presence were known both by the police and the ORG ... and they kept quiet . As a result of the ORG 's silence the field is left open to the gangs ( page CARDINAL )

... PERSON was also associated with GPE , an organisation within the gendarmes , which used large numbers of protectors and confessors ( page CARDINAL )

PERSON ( Code name PERSON ) testified , in his statements taken DATE by the Commander of ORG in relation to PERSON , that the kidnapping of ORG and the finding of his dead body ... was result of a plan of PERSON who was then working at ORG ... and that he < PERSON > had worked for the ORG from time to time . ( page CARDINAL )

< In his confession to ORG > PERSON ... had stated that PERSON would say from time to time that he had personally planned and committed the murder of PERSON and of other mafia and ORG members who had died in the same manner . ( page CARDINAL )

Summary information on the antecedents of PERSON , are set out below . He was of NORP origin ... and was born in GPE . ... In DATE he joined certain NORP intellectuals and formed a group called “ The ORG ” . Later they set up a company called ORG and attempted to publish a newspaper called LOC . As of DATE he was the middleman in collecting money from drugs smugglers to hand over to the ORG . In DATE he brought QUANTITY of base morphine and QUANTITY of hashish from GPE to GPE and these drugs were purchased by < CARDINAL persons > and ... PERSON collected money from these individuals on various occasions in order to give it to the ORG . ( page CARDINAL )

As of DATE < PERSON > was one of the financiers of the newspaper PERSON . ... Although it was obvious who PERSON was and what he did , the ORG was unable to cope with him . Because legal remedies were inadequate the PERSON was blown up with plastic explosives and when PERSON started to set up a new undertaking ... ORG ( PERSON ) decided that he should be killed and that decision was carried out . Thus CARDINAL person was removed from “ the list obtained of businessmen who finance the ORG ” referred to by the then Prime Minister and which list is known to have consisted of CARDINAL persons . No discussion has taken place on the question as to whether the murder of PERSON GPE was right or wrong , or whether it was necessary . However , inevitable questions must be asked . Who ordered the murder of LOC ? Who can exercise such authority ? Under what circumstances can this authority be exercised ? Who is responsible to whom ? The objection “ in a State where the rule of law prevails there can be no place for these questions ” is not , in our opinion , valid and is not in accordance with reality . ( page CARDINAL )

All of the relevant ORG bodies were aware of these activities and operations . ... For example , CARDINAL of the common features of the murders having taken place in the İzmitAdapzarı - Bolu axis < an area between GPE and GPE > is the concerted activities of the police , the gendarmerie and members of the confessor organisations in this region ... When the characteristics of the individuals killed in such actions are examined , the difference between , on the one hand , those NORP supporters who were killed in the region where the state of emergency had been declared and , on the other , those who were killed elsewhere lay in the financial strength the latter represented in economic terms . ... The sole disagreement we have with what was done relates to the form of the procedure and its results . ( page CARDINAL )

< ORG > We had the authority the execute almost everyone in ORG and its surroundings whom we suspected of being connected with the ORG . ... Instead of handing them over to the justice authorities , we adopted as a method the “ unknown perpetrator killing ” ( “ faili mesul cinayetleri ” ) . This was what was wanted from us . We received instructions to this effect . ( page CARDINAL ) ”

In an interview published on CARDINAL DATE in the newspaper ORG , the ORG Minister responsible for Human Rights , Mr Hikmet PERSON , was asked :

“ In ORG it was explained that some murders , which had previously been called “ mysterious ” , were committed by the security forces . Did the families of the victims come to your Ministry and how did you deal with them ? ”

PERSON replied :

“ No , they have not come to us . The number of incidents reported to us is not that high . I think that those people apply to the courts . What we look at are those that the non - governmental organisations dealt with and the letters that we received . ”

In response to the remark :

“ You say that we have to trust our government , but in ORG , which was given to the Prime Minister PERSON , it is indicated that certain violent activities and unsolved crimes were committed in the name of the State . ” ,

Mr Türk stated :

“ It is not possible for us to find out these kinds of things . We would get lost within some labyrinth if we tried to find them out . These are issues that must always be investigated and supervised by the ORG . I must add that the ORG must not allow illegal formations within its body . ”

On DATE , the DATE newspaper ORG published an article in which it was claimed that “ there existed an organisation called PERSON 's ORG , that PERSON ordered the < premises of > PERSON to be bombed and that PERSON was PERSON 's secret partner in money laundering ” .

PERSON and her husband PERSON took a civil action for defamation against the editor and the owner of the newspaper . In the resulting judgment no . CARDINAL of DATE , ORG ) noted that the article was based on the contents of a ORG report . Having checked the author 's copy of this report , i.e. the Report No . ORG ( see § § CARDINAL - CARDINAL above ) against a copy of the original report obtained from the ORG , the court concluded that these were identical . ORG found against PERSON , holding that :

“ The press ... has a duty to monitor the behaviour of politicians and to inform the public of their activities ... as long as the media are informing the public of any news that is in the public interest ... this constitutes a public duty on the part of journalists which should be carried out effectively ... The defendant has proved the source of his news and therefore there has been no attack on the plaintiffs ' personal integrity . ”

In its unanimous decision no . CARDINAL/CARDINAL of CARDINAL DATE , ORG ( Yargıtay ) rejected the appeal in cassation filed by PERSON and her husband , and upheld the judgment of DATE .

NORP In criminal proceedings brought against a number of persons implicated in the GPE affair , which have been extensively covered by the NORP media , ORG ( PERSON ) decided in a ruling of CARDINAL DATE to discontinue the proceedings against ORG and PERSON on grounds of their immunity as elected members of parliament in the DATE elections .

NORP In its judgment of DATE , ORG convicted , inter alia , the former deputy head of ORG and the former ORG official PERSON of " founding and directing a gang with the aim of committing crimes " and sentenced them both to DATE imprisonment . CARDINAL others , including former members of Special Operation Teams and police officers , received lower sentences . In its judgment , ORG stated inter alia :

“ Obstruction of the judicial investigation through administrative , political and legal manoeuvring worries and scares society and damages the sense of justice . ... The people who commit crimes and hide behind political , social , administrative and legal shields , and others who refuse to remove these protections ought not to forget that they too will need justice DATE . ”

On DATE , the CARDINALth ORG ) declared the appeal in cassation filed against the judgment of CARDINAL DATE founded and quashed this judgment . It held , inter alia , that ORG had unjustly rejected the defendants ' request to have the proceedings conducted in camera .

On DATE , ORG ( Yargıtay Ceza Genel Kurulu ) accepted the objection filed by the public prosecutor against the judgment of DATE . It subsequently quashed this ruling and referred the case back to the CARDINALth ORG for a new decision .

On DATE , the CARDINALth ORG rejected the appeal in cassation filed against ORG judgment of CARDINAL DATE .

LAW ( ORG ) , as regards unlawful killings , has provisions dealing with unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) .

Pursuant to ORG CARDINAL and CARDINAL of LAW ( ORG Usulü GPE ; hereinafter referred to as “ ORG ” ) , complaints in respect of these offences may be lodged with the public prosecutor . The complaint may be made in writing or orally . In the latter case , such a complaint must be recorded in writing ( LAW . The public prosecutor and the police have a duty to investigate crimes reported to them ( LAW ) .

If there is evidence to suggest that a deceased has not died of natural causes , the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( LAW . Pursuant to LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty shall be liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators ( LAW ) . The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect ( LAW ORG ) . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , the public prosecutor may close the investigation . However , the public prosecutor may decide not to prosecute if , and only if , the evidence is clearly insufficient .

Insofar as a criminal complaint has been lodged , a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings . This appeal must be lodged within DATE after notification of this decision to the complainant ( LAW ORG ) .

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :

“ All acts of decisions of the administration are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

This provision is not subject to any restriction even in a state of emergency or war . the second paragraph does not require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus , the administration may indemnify individuals who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

Pursuant to LAW , anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage ( ORG CARDINAL - CARDINAL ) and non - pecuniary damage . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and was serving a prison sentence at the time of the application . He was represented before the ORG by Mr PERSON , his father .

On DATE ORG convicted the applicant of membership of an illegal organisation , ORG , under LAW .

On DATE the applicant lodged an appeal against ORG judgment .

On DATE ORG upheld the judgment of DATE .

On DATE the applicant introduced an application with ORG . He complained under LAW that he was deprived of his right to a fair trial in that he had not been assisted by a lawyer during his questioning by the police , the public prosecutor and the magistrate .

On DATE , after an exchange of correspondence , the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of LAW ( b ) of the LAW . On DATE and on DATE the Government and the applicant 's representative respectively submitted formal declarations accepting a friendly settlement of the case .

On DATE the ORG struck the case out of the list .

On DATE Law no . CARDINAL came into force , which provided , inter alia , re - opening of the criminal proceeding if ORG holds in a final judgment that a decision in criminal proceedings has violated LAW or its protocols .

On DATE the applicant requested ORG of ORG to re - open the criminal proceedings against him .

On DATE ORG of ORG dismissed the applicant 's request holding that ORG had not found a violation of LAW concerning the criminal proceedings against the applicant .

On DATE the applicant filed an objection with ORG of ORG against the decision of DATE .

On DATE the CARDINALnd Chamber of ORG dismissed the applicant 's objection on the same grounds with DATE Chamber of ORG .

LAW lists the circumstances in which “ a person convicted in a judgment that has become final may be granted a re - trial ” .

It was amended by LAW no . DATE , which added a sixth set of circumstances in which the proceedings could be re - opened :

“ where it has been held in a final judgment of ORG that a decision in criminal proceedings was given in breach of ORG or its Protocols . In such cases , an application to re - open the proceedings may be lodged within DATE of the date on which the judgment of ORG became final . ”

Law no . DATE came into force on DATE . By provisional LAW , LAW is applicable in CARDINAL sets of circumstances : where the ORG has delivered a judgment that became final before the PERSON came into force , and where the ORG delivers a final judgment on an application lodged after the PERSON came into force .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Egbert Myjer;Kristina Pardalos;Luis López Guerra

The applicants are NORP nationals . They are all owners of immovable property which was occupied by tenants by virtue of lease agreements concluded with the ORG . After the fall of the NORP regime , the ORG ownership was confirmed by the courts . The applicants therefore attempted , unsuccessfully though , to evict the tenants or to cash in the rent due to them . The relevant court decisions are set out in the table appended hereto .


The applicant is a joint stock company which was established in DATE and has its registered office in GPE . Since DATE the name of the applicant company has been PERSON , a.s . It operates a mobile phone network in GPE . It is represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , their Agent .

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

Under a contract of DATE between the applicant company and ORG ( PERSON informačná služba – “ the SIS ” ) , which was supplemented by an annex of DATE , the applicant company cooperated with the ORG in its monitoring of telecommunication traffic ( “ interception ” ) in the applicant company ’s network . The cooperation included adjustments to the applicant company ’s switchboards .

At that time the ORG ’s role and powers of interception were laid down in LAW ( CARDINAL ) of LAW of DATE ( Law no . PERSON . , as amended ) . This provision contained no express rules as to who was to finance the interception and the equipment necessary for it ( “ interception equipment ” ) . According to the Government , however , the provision was in practice understood as imposing the duty to finance the interception equipment on the operators of telephone networks .

On DATE LAW ( Law no . CARDINAL/CARDINAL Coll . ) entered into force . It replaced LAW of DATE . Under section CARDINAL ( CARDINAL ) the applicant company had a duty towards lawenforcement and ORG defence and security authorities to provide , at its own cost , the means for interceptions in its network . The scope and technical specifications of the interception equipment were to be approved by ORG ( PERSON úrad PERSON republiky ) .

In a letter of DATE the ORG requested that ORG authorise an extension of the interception equipment used in the applicant company ’s network . The request concerned the existing equipment , which had been procured in DATE and now had to be extended on account of the expansion and modernisation of the applicant company ’s network . The police and ORG , who were also involved with interception , supported the request .

The request was granted on DATE , but the decision was quashed on DATE on appeal ( rozklad ) on account of formal shortcomings .

On DATE ORG held a hearing . It was attended by representatives of the applicant company , the ORG and the ministries of the interior , defence , justice , finance , and transportation , post and telecommunications .

On DATE a representative of the applicant company was allowed to consult the case file . Following the consultation , on DATE , ORG again authorised the extension sought . It was understood that , by virtue of section CARDINAL ( CARDINAL ) of LAW of DATE , it was the applicant company alone that was to bear the costs of the extension .

At the same time ORG ruled that the authorisation would become effective immediately even if the decision as such were to be appealed against . This ruling was based on the pressing general interest which ORG found in the need to ensure the proper functioning of the ORG organs and agencies whose task was to monitor telecommunications .

On DATE the Director of the ORG dismissed an appeal by the applicant company as unfounded .

The applicant company challenged the decisions of DATE and DATE by an administrativelaw action in ORG ( Najvyšší súd ) . As in the proceedings before ORG , the applicant company did not object to the duty to contribute to the financing of the interception equipment as such , but merely to the scope of that duty as established by ORG . The applicant company further argued that the procedure and the decisions had been arbitrarily classified as “ secret ” ; that the extension took no account of the applicant company ’s technical , staffing and financial capacity ; and that no cost - benefit analysis had been carried out . The extension was therefore at variance with the applicant company ’s property rights guaranteed under LAW and LAW .

On DATE the applicant company lodged an application requesting ORG to stay the proceedings under LAW ( b ) of LAW and initiate proceedings in ORG ( Ústavný súd ) with a view to reviewing the compliance of section CARDINAL ( CARDINAL ) of LAW of DATE with the relevant provisions of the LAW and with LAW No . CARDINAL .

On DATE ORG dismissed the action . It observed that ORG had held a hearing and that its decision had been delivered publicly . Classifying the proceedings as “ secret ” was not excluded by law and had not curtailed the applicant company ’s procedural rights . ORG also held that section CARDINAL ( CARDINAL ) of LAW of DATE unequivocally imposed on the applicant company the financial burden of the equipment in question . It was for ORG to specify the scope and technical features of the equipment , which it had rightly done . As to the applicant company ’s constitutional and LAW objections , ORG “ discerned no violation of the applicant company ’s constitutional rights ” . No decision was taken and no opinion was expressed in respect of the applicant company ’s application of DATE to stay the action and challenge the constitutionality of the relevant provisions of LAW of DATE . No appeal lay against that judgment and , upon service on the parties , it became final on DATE .

The applicant company complied with the above decisions and accordingly incurred financial expense .

In DATE the applicant company requested ORG to exercise his discretionary power to challenge section CARDINAL ( CARDINAL ) of LAW of DATE in ORG as being contrary to LAW and the Convention . The Prosecutor General acceded to the request .

On DATE LAW ( Law no . CARDINAL/CARDINAL Coll . ) entered into force . LAW ) ( j ) of that LAW provided for a similar duty in respect of financing interception equipment as section CARDINAL ( CARDINAL ) of LAW of DATE .

The Prosecutor General subsequently withdrew his constitutional challenge in respect of section CARDINAL ( CARDINAL ) of LAW and the proceedings in respect of it were discontinued without any decision being given on the merits .

In DATE the applicant company again requested ORG to exercise his discretionary power and challenge section CARDINAL ( CARDINAL ) ( j ) of LAW of DATE in ORG as being contrary to LAW and the Convention . From the official internet page of ORG ) it appears that ORG lodged the challenge on DATE and that it is still pending .

LAW ( a ) provides :

“ The Constitutional Court shall have jurisdiction to determine the compliance of statutes with the LAW , constitutional statutes and international treaties which have been assented to by ORG and ratified and promulgated in the manner required by statute . ”

Article CARDINAL , as in force from DATE , reads as follows :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or juristic persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated .

The liability for damage or other loss of a person who has violated another person ’s rights or freedoms within the meaning of paragraph CARDINAL shall not be affected by the Constitutional Court’ s decision . ”

Pursuant to LAW :

“ The Constitutional Court shall open proceedings on an application by

a ) no less than one fifth of the deputies of ORG ,

b ) the President of GPE ,

c ) the Government of GPE ,

d ) a court of law ,

e ) the Prosecutor General

f ) any person whose rights are the subject of proceedings under Articles CARDINAL and CARDINALa [ of the LAW ] . ”

Article PERSON provides :

“ CARDINAL . International treaties on human rights and fundamental freedoms ratified by GPE and promulgated in accordance with the statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order and take precedence over national laws provided that such international treaties guarantee more extensive constitutional rights and freedoms .

Other international treaties ratified by GPE and promulgated under statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order if so provided by statute . ”

Details concerning the status of ORG and of the procedure before it are laid down in LAW .

Under LAW ( CARDINAL ) , which applies to all types of proceedings before ORG , as a general rule , the scope of ORG examination of a case is limited by the summary of the application for commencement of the proceedings , as formulated in a standardised and prescribed form by the plaintiff .

Specific rules applicable in respect of complaints under LAW are laid down in sections CARDINAL et seq .

Under section CARDINAL ( CARDINAL ) a constitutional complaint is not admissible if the complainant has not exhausted effective remedies that are available to him or her in respect of the rights and freedoms in question .

Section CARDINAL ( CARDINAL ) provides that a constitutional complaint can be lodged within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given . As regards measures and other interferences , the above period commences when the complainant could have become aware of them .

A complaint under LAW , as in force from DATE , can not be directed against violations of fundamental rights which took place DATE ( see , for example , the decision of DATE , file no . II . ÚS CARDINAL/CARDINAL ) .

ORG has no power of alternative or extraordinary review in respect of matters DATE within the jurisdiction of the ordinary courts ( see , for example , the decision of DATE , file no . II . ÚS CARDINAL ) . As a matter of principle , ORG has no power to review factual findings and legal conclusions of the ordinary courts ( see , for example , decision of CARDINAL DATE , file no . II . ÚS CARDINAL ) or to scrutinise their interpretation and application of the law ( see , for example , decision of CARDINAL DATE , file no . I. ÚS CARDINAL/CARDINAL ) . The jurisdiction of ORG is subsidiary and applies only to matters that fall outside the jurisdiction of the ordinary courts ( see decision of DATE , file no . II ÚS CARDINAL/CARDINAL ) . ORG can examine decisions of the ordinary courts as such only if they are “ manifestly ill - founded or arbitrary ” ( see , for example , decision of DATE , file no . I. ÚS CARDINAL ) . Apart from that , ORG role is principally limited to examining whether the effects of the ordinary courts’ decisions are compatible with the LAW and applicable international instruments ( see , for example , decision of DATE , file no . I. CARDINAL/CARDINAL ) . If an incompatibility is found , the ORG exercises its power to quash the decision concerned and to award just satisfaction ( see , for example , judgments ( nález ) of DATE , CARDINAL DATE and DATE , file nos . I. ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL and III . ÚS CARDINAL/CARDINAL , respectively ) .

Ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the LAW and with international treaties . Accordingly , the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the LAW or international treaties ( see , for example , the decision of DATE , file no . I. ÚS CARDINAL ) .

Any type of proceedings before ORG can only be commenced in a separate set of proceedings and only on the application of persons or bodies which have standing to initiate them . No type of constitutional proceedings can be instituted within proceedings of another type . An examination of a complaint under LAW can not entail a review of the constitutionality of legislation ( see , for example , decision of DATE , file no . II . ÚS CARDINAL ) .


Inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On the dates set out in the appended tables domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour . The decisions became enforceable . However , the applicants were unable to obtain the enforcement of the decisions in due time .

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non - enforcement issues .


Violation of Art. 5-3;Violation of Art. 6-1

Ineta Ziemele;Ján Šikuta;Kristina Pardalos

The applicant was born in DATE and lives in Rīga .

On DATE the applicant was taken into custody on suspicion of murders and robbery .

On DATE a judge of ORG ordered the applicant ’s detention on remand .

On DATE the ORG extended the applicant ’s detention until DATE . An appeal lodged by the applicant was dismissed on CARDINAL DATE by ORG .

The ORG further extended the term of the applicant ’s detention on the following dates : on DATE until DATE ; on CARDINAL DATE until DATE ; on DATE until DATE ; on CARDINAL DATE until DATE ; on DATE until DATE ; on DATE until DATE ; on DATE until DATE . All the decisions contained an identical phrase which stated that the judge had taken into account the severity of the crime the applicant was suspected of , the danger of his possible absconding and the possibility that he could impede the investigation . The applicant did not appeal to ORG against the aforementioned decisions .

Meanwhile , on DATE ORG sentenced the applicant to one year and DATE imprisonment for an unauthorised acquisition and storage of weapons . The period of detention on remand from DATE to CARDINAL DATE was included in the term of the sentence , which the applicant served until DATE .

On DATE the final indictment was presented to the applicant , and on DATE the judge of ORG remitted the criminal case for trial . The latter was scheduled to take place on DATE . By the same decision the preventive measure was left unchanged without giving reasons or setting a time - limit .

In DATE the applicant ’s lawyer asked ORG to adjourn the proceedings . On DATE the proceedings were adjourned for an unlimited period .

On DATE the court informed the applicant that the trial was scheduled to take place on DATE .

On DATE , the court granted the request of a co - accused to undergo a psychiatric examination , and stayed the criminal proceedings .

At the lower court ’s request , on DATE the ORG , in absence of the applicant or his lawyer , extended the applicant ’s detention until DATE . The ORG relied on the serious nature of the charges , and on the necessity to ensure proper conduct of the court proceedings . The decision was not subject to an appeal .

On DATE the forensic experts asked for an extension of DATE in order to complete their report .

On DATE ORG repeatedly requested the ORG to extend the applicant ’s detention on remand . It relied on the fact that the case was particularly complex and that the hearing had been scheduled to take place on DATE . The ORG , in absence of the applicant or his lawyer , extended the applicant ’s detention until DATE .

DATE the hearings were repeatedly postponed due to the absence of witnesses .

On DATE the applicant was found guilty of CARDINAL murders and sentenced to CARDINAL years’ imprisonment . On DATE ORG dismissed the applicant ’s appeal , and on DATE the ORG of ORG dismissed the applicant ’s appeal on points of law .

During the municipal election campaign , DATE , CARDINAL private TV channels broadcasted an advertisement sponsored by a political party in which PERSON , the Prime Minister at the material time , made statements that a candidate promoted by the political party had been credited with tracking down the applicant ’s activities .

On DATE the applicant brought a civil defamation claim against B. , the political party and owners of the TV channels .

On DATE the Rīga City Central District Court decided that the case felt within the jurisdiction of ORG , which on DATE , following the GPE request , stayed the proceedings pending the outcome of the criminal proceedings against the applicant .

According to the information submitted by the ORG , the next hearing had been scheduled to take place on CARDINAL DATE , but had been adjourned at the applicant ’s request ; the next one had been scheduled to take place on CARDINAL DATE .

No further information has been submitted by the parties in respect of the above proceedings .

On DATE the applicant applied to the prosecutor for permission to receive letters from his relatives . On DATE the prosecutor dismissed the applicant ’s request , and the latter did not appeal . The applicant was allowed to receive short - term visits with his relatives as from DATE , whereas on DATE ORG granted the applicant a permission to exchange correspondence with his relatives .

The relevant provisions of LAW ) applicable at the material time ( in force until DATE ) , and other relevant practice are found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE ; DATE , DATE ) .


CASE OF ALITHIA PUBLISHING COMPANY LTD & CONSTANTINIDES v. CYPRUS

Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Myron Nicolatos;Sverre Erik Jebens

The first applicant , ORG , is registered under NORP law and is the publisher of the DATE TIME newspaper Alithia . The second applicant , PERSON , is the editor - in - chief of ORG . He was born in DATE and lives in GPE .

DATE and DATE the first applicant published a series of CARDINAL articles written by the second applicant . These articles concerned the conduct of PERSON , who at the relevant time was Minister of Defence of GPE . The articles claimed that he had been involved in a conspiracy with armaments traders for the misappropriation of public funds .

According to the applicants , PERSON , acting on behalf of the ORG , was in the habit of accepting more expensive armaments contracts in return for generous commissions from certain armament traders . It was alleged that he used these commissions to fund his gambling habit in GPE casinos . It was further reported that PERSON , while betting in casinos in the company of his friends - the armaments traders - , would discuss classified information concerning the ORG ’s armament programme , and that this was how such information had been divulged to the international press . It was also claimed that he had instigated a bomb attack against the second applicant .

NORP In particular , in an article of DATE , written by the second applicant , the newspaper “ revealed ” that GPE had purchased a NORP armament system which was effectively useless , given that GPE did not possess the equipment that was necessary to maintain it . It was claimed that various officials had received commissions of CARDINAL million Cypriot pounds ( ORG ) in respect of this purchase . The President of the LOC and the Minister of Defence , amongst others , were well aware of the identity of the beneficiaries , but journalists daring to investigate in such matters should be very careful .

A second article published on DATE and entitled “ People in hiding : a reply to an anonymous article by Mr PERSON , Minister of Defence ” , the second applicant expressed his concern about the fact that the Minister of Defence , who was “ certainly ” aware of the individuals who were receiving commissions from the purchase of armaments , did not denounce them to the relevant authorities . It read : “ such questions ... [ should be ] addressed to PERSON , who is a connoisseur of ... casinos ” . It was added that , should the Attorney - General wish to proceed with a criminal investigation into these matters , he should start with the acts of those “ who are gambling in casinos , laughing at us , while we , the fools , are required to pay for their chips ” .

A subsequent article by the second applicant , dated DATE and entitled “ The Attorney - General and the clowns [ μασκαράδες ] ” , stated that the Minister of Defence , PERSON , through an article in another NORP newspaper , had had the “ incredible nerve ” to request Alithia to name the suppliers of armament systems who were paying commissions to ORG officials . The article read as follows :

“ Those names , however , were well known to everyone , and firstly to the President of the Republic and the Minister of Defence . The latter regularly appears in casinos alongside the most important arms supplier , and attends receptions given by another . No one attends receptions given by people whom he does not know , or embarks on cruises in the yachts of strangers . The Attorney - General should interfere where he ought to do so . There are many clowns and crooks in this place , who are beyond the reach of the short and crooked arm of the law . ”

The closing paragraphs of the article read :

“ The last time that our paper covered the great feast hosted by defence officials , the Attorney - General had not been invited . In fact , certain hit men were employed to terrorise our newspaper and , to a certain extent , their attempt has been successful . GPE is a small country and everyone knows what is going on . Everyone is aware of the names that we were called on to reveal . Everyone knows about the casinos . Everyone knows about the bomb attack and the people who instigated it . So the clowns ( μασκαράδες ) should stop acting in a provocative [ and ] hypocritical manner . ”

In another article of DATE the second applicant stated :

“ According to information from a serious source , at CARDINAL stage an arms firm had offered us [ GPE ] CARDINAL tanks . We did not accept the offer because the tanks had been offered for free . Had we agreed to take these tanks , there would have been no commissions - and then what would happen to the casinos ? ”

A further article by the second applicant , dated DATE and entitled “ PERSON ’s newspaper , casinos and missiles ” , stated :

“ A NORP newspaper , to which the Minister of Defence PERSON is transmitting poppycock [ σπερμολογίες , literally , spermologies ] against the newspaper Alithia , published the following in its edition of DATE :

‘ Recent publications , appearing on a DATE basis for DATE in a TIME DATE newspaper , have prompted a threatening statement from the NORP Prime Minister PERSON . The NORP were particularly worried by information published concerning the intention of ORG to purchase ORG missiles.’

The above statement obviously concerns Alithia and warrants a reply :

Alithia has never stated anything concerning ORG missiles . The reference to negotiations conducted by GPE for the purchase of ORG missiles was published in the foreign military journal ORG DATE and was mentioned in the newspaper ORG DATE .

On the contrary , PERSON merely stated that it would be foolish for GPE to buy such missiles , which are primarily launched from airplanes that we do not possess .

The NORP have therefore heard about the missiles from elsewhere . And it is well known where ORG obtained its information . When our ministers gamble in casinos together with various arms suppliers and become merry , they start shouting about matters concerning missiles and rockets , and everyone can hear them . ”

A further short article of DATE was entitled “ NORP ” and was accompanied by a picture of PERSON . It referred to an article in another NORP newspaper reminding a well - known NORP politician that the NORP electoral body was not a casino in GPE . It added that there was no need to refer to casinos in GPE since the GPE casino PERSON was closer . In this respect , the Alithia article stated :

“ You should ask PERSON and his team who will be in a position to confirm this . Of course , PERSON would not know how people exit from casinos in their underwear but he is well aware of how you get in there ” .

On DATE , an article entitled “ Call CARDINAL and ask why the Minister of Defence is entertaining himself with armament dealers ” , stated :

“ Mr Clerides’ promotional film ... could invite taxpayers to call PERSON [ President of the Republic at the time ] and ask him why his Minister of Defence is having fun in restaurants alongside arms dealers , why he is playing PERSON with them in GPE casinos and why [ he ] always insists on purchasing everything from those particular arms dealers . ”

Another article , of the same date , called on the Minister of Defence to explain why GPE had paid twice as much as GPE for an identical armament system . The Minister was further called on to explain the exact nature of his relations with a NORP company involved in the armaments trade ( PERSON ) .

A further article of the same date , written by the second applicant and entitled “ Casinos and Panties ” , read :

“ The Minister of Defence , PERSON , ... is a regular in casinos ; the publisher of ORG ... said ... the following about him :

‘ We saw him having fun in various night spots in GPE alongside representatives of arms manufacturers ; we saw him cruising in their luxurious yachts ; we saw him gambling with them in GPE .

The reference to casinos .... is made in a literal sense and refers to the GPE casino PERSON , where MONEY are at stake , to the detriment of our defence ...

When Alithia first reported on the issue of enormous commissions being paid to ORG officials by arms dealers , DATE , it was targeted by nocturnal assailants . As is very well known , the orders behind this were issued from the GPE casino . ( In the meantime , we took our measures and would like to warn such assailants , who dare to speak about morality , that we are not affected by their new threats .... ) .

On DATE the second applicant stated , in an article entitled “ Defence In and Out ” :

“ The main interest of the Minister of Defence ... in DATE was not to improve the defence of GPE , but the purchase of excessively expensive systems from PERSON at prices which at times were CARDINAL times the price of similar and indeed better systems . His goal was to spend as much as possible for well - known reasons , and not that of the ensuring an effective ... defence ...

The defence of GPE has accordingly been vested in the hands of a foreign company , PERSON , while GPE ’s defence policy is in reality being considered and developed at GPE ’s PERSON , where all decision - making is taking place .

The defence of GPE in the hands of amateurs , and PERSON has become a lucky game like banco punto , roulette or black PERSON . And what we fools have not yet realised is that these people are gambling with our own money ... ”

By originating summons of CARDINAL DATE , PERSON instituted civil proceedings for defamation before ORG of GPE . Mr PERSON requested compensation for defamation as well as a court order prohibiting further reporting of his conduct in a defamatory manner . The trial took place before Judge PERSON . It lasted for DATE , a period considered as extraordinary by the district court . The defendants invited CARDINAL witnesses to give oral evidence and CARDINAL written exhibits and other pieces of documentary evidence were admitted .

The applicants accepted during the trial that the contested publications were defamatory toward the plaintiff . In particular , it was stated on their behalf that the publications “ were intensely defamatory toward the plaintiff and injured , inter alia , his integrity , honesty , reputation , personality , patriotism and good fame , and caused serious injury and damage to his private , social and public life ” . Nevertheless , they argued that the publications were covered by the defence of justification and fair comment and constituted a legitimate exercise of their right to freedom of expression . In this context , they maintained that their allegations concerning Mr PERSON ’s conduct were true .

On DATE Judge PERSON delivered the district court ’s judgment , by virtue of which the applicants were found liable for defamation . In relation to the defence of justification , the district court noted that where this defence was raised , the burden of proof fell on the defendant to show the accuracy of the facts referred to in a publication . Should the defendant fail to discharge it , then this defence would fail even in cases where a defendant honestly and reasonably believed that the relevant statements were true .

It was noted that the defence of fair comment applied when a published statement constituted a fair and reasonable comment on a matter of public interest . The comment had to be made on the basis of facts that were set out correctly and without malice . The defendant would bear the burden of proof in showing that the facts on which the comment was based were true and that the comment could be justified as one that could have been made by a reasonable man . If the defendant succeeded in establishing the fairness of the comment , then the burden would shift to the plaintiff , who would have to show the existence of malice on the part of the defendant . Judge PERSON added that “ there would be a further limitation when a comment concerned a person holding a public post and imputed to him immoral , dishonest or corrupt behaviour , in which case a defendant would have to show the truth of his allegations . ”

The testimony of the first applicant ’s director and the second applicant demonstrated that they had had no evidence or other sources in support of their allegations at the time of publication . Their positions were further undermined by the fact that the applicants had apologised to a certain armaments dealer for their defamatory allegation that he had been conspiring with PERSON . The second applicant had been found to be an unreliable and evasive witness . His testimony demonstrated that there had been no research or other attempt to verify most of the allegations made in the impugned publications . Moreover , the second applicant had been entirely contradictory as to whether any effort had been made to contact PERSON prior to publication . His evidence was rejected . The evidence of the first applicant ’s director was also rejected : his allegations had been found to be clearly unsubstantiated and showed his prejudice against PERSON .

In relation to the award of damages , Judge PERSON took into account , inter alia , the seriousness of the defamatory allegations and the complete lack of evidence . He also considered that the overall behaviour of the applicants at trial showed malice : they had insisted on the truth of their defamatory publications and had pursued a defamatory campaign against the plaintiff by a series of clearly defamatory and unverified articles , which continued to be published even while the proceedings were pending . On this basis an award of QUANTITY ( ORG ) [ equivalent to MONEY ( “ NORP ” ) ] was made as ordinary damages in addition to an award of ORG CARDINAL ( equivalent to approximately ORG GPE ) for exemplary damages .

On DATE the applicants lodged an appeal against the district court ’s judgment with ORG . In their grounds of appeal they challenged , inter alia , the compatibility of NORP defamation law , as set out in LAW . CARDINAL ( see paragraph CARDINAL below ) , with the right to freedom of speech as guaranteed in LAW and the Convention .

On DATE , the President of ORG delivered ORG majority judgment , which upheld the district court ’s judgment and the corresponding award of damages . It was noted that the applicants had stated in their statement of defence , filed with the district court that the publication of the impugned articles amounted to an exercise of their right to freedom of expression and , as such , should have been protected . On this basis , they argued before ORG that they had explicitly raised the defence of qualified privilege in their defence statement and that their plea had been ignored by the first - instance court . The majority found that , given that the applicants had not properly raised this defence in their pleadings , the first - instance court had been correct not to examine it .

There had been no evidence presented in court supporting the ORG allegations and the lack of such evidence was even admitted by the second applicant and the first applicant ’s director . The latter ’s testimony had been rejected as unreliable . Despite the lack of supporting evidence , the applicants had not presented their serious allegations to PERSON PERSON prior to publication , which was indicative of their motives and their indifference as to the truth of the facts presented and discussed in the articles . The articles not only imputed to PERSON the commission of criminal offences but had disparaged his moral character by presenting him as an unscrupulous criminal driven purely by self - interest . The lack of supporting evidence and the seriousness of the defamatory allegations demonstrated the existence of malice on the part of the applicants as well as their intent to defame the plaintiff .

It was observed that the defence of qualified privilege was based on the duty to transmit information , correlated by the right to receive such information . Its establishment depended on a number of factors concerning the nature of the information in issue , the extent of any public interest in the matter , the sources of such information , the measures taken to verify the facts and whether the plaintiff had been requested to comment on the allegations made in the publication . The protection of freedom of expression entailed that the courts should not easily reach the conclusion of lack of public interest over the subject - matter of a publication . In cases of doubt , freedom of expression should be favoured . The majority thus endorsed the ORG of Lords’ leading judgment in ORG [ DATE ] CARDINAL AC CARDINAL , at CARDINAL . However , it was considered that even assuming that the defence of qualified privilege had been properly raised , in the light of the circumstances of this case it would not have succeeded .

Defamation as a tort predated the enactment of the LAW and it had therefore to be examined whether the provisions of PERSON . CARDINAL , concerning an action in defamation , were compatible with LAW protecting the right to freedom of expression ( see paragraph CARDINAL below ) . PERSON . CARDINAL constituted a justified limitation on the right to freedom of expression since its provisions aimed to protect the reputation of another . The limits on freedom of expression had to be directly connected with the aim that rendered them legitimate and the necessity requiring the protection of that aim . Whenever there appeared to be conflict between CARDINAL rights , the courts should take into account in their balancing exercise that fundamental rights were of equal importance . Reputation was considered to be an integral and important part of the dignity of an individual which , once besmirched by unfounded allegations , could be damaged forever . Its protection was vital for the protection of the rights of individuals and was in the public interest . Hence , the provisions of PERSON . CARDINAL did not run counter to the Constitutional protection of freedom of expression .

The defence of justification ensured the essence of the right to freedom of expression . However , it was conditional on the existence of good faith on the part of a defendant in defamation proceedings . In the present case , the facts on which the publications had been based were inaccurate and the defendants had acted in flagrant disregard of the requirement to verify the factual allegations they had published .

Mr Justice Hadjihambis delivered a dissenting opinion . He considered that the defence of qualified privilege had been raised properly by the applicants in their pleadings , since they had added therein that the action was contrary to their free speech rights . Section CARDINAL ( CARDINAL ) of ORG explicitly referred to the defence of qualified privilege in setting out the balance that must be struck between freedom of expression and the right to reputation . Under this provision , a publication would be privileged only if it was made bona fide and did not exceed what would be reasonable under the circumstances . In his view , given that the first - instance court had not considered the relevant defence , ORG should have ordered a re - trial of the case .