Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON . He was , at the time of the events to which the present application pertains , the Chairman of ORG and a university professor and is the author of the DATE school curriculum on “ Universal History ” .

On DATE the official newspaper of ORG , GPE Suverană ( “ Sovereign GPE ” ) , published an article written by a historian and former deputy minister for education , ORG , headed “ Commentary on PERSON reply on the Internet ” ( PERSON domnului PERSON ) . The article made negative remarks about the applicant 's competence as a historian . It went on to suggest that the applicant 's university place as a postgraduate student and his subsequent career as a historian were the result of his cooperation with the NORP secret services . In particular , the article contained the following statements :

“ That is , PERSON , it is not a political question but has to do with your ' feeble ' memory or the lack of professional dignity . ”

“ But , you see , they did not properly understand this exorcising priest ... ”

“ ... for his special merit ( confirming the confidence of the ORG ( b ) – ORG ) , [ the applicant ] was sent for postgraduate studies ... ”

“ ... as a student , he excelled ... due to his ' special accomplishments ' ( he was a well - educated person who knew how to knock politely and respectfully at his superiors ' doors : knock - knock - knock ? ! ? [ stuk - stuk - stuk ] ) , and he became a member of ORG ( b ) during his student DATE ... ”

“ ... the ORG once sent a ' Volga ' especially for [ the applicant ] ( how much faith did those from the ORG – ORG have in comrade PERSON ! ! ) to take him to PERSON ... ”

On DATE , the applicant brought defamation proceedings against ORG and the newspaper , seeking the publication of a retraction and compensation for non - pecuniary damage .

During the proceedings before ORG , the court heard evidence from a witness who was questioned about the allegation that , as a student , the applicant had collaborated with the NORP secret services . The witness was unable to confirm whether the applicant had been involved with the secret services and merely stated that the ORG had been operating undercover .

In its judgment of DATE ORG granted the applicant 's claims in part . The court found that it had been confirmed that the applicant had been a member of ORG . However , it held that the reference to the applicant 's links with the secret services ( “ confirming the confidence of the ORG ( b ) – ORG ” ) was defamatory as it had not been proved that he was an agent of the ORG . The court 's judgment stated , inter alia :

“ ... ORG 's assertion that PERSON was sent for postgraduate studies ' ... only for his ' special accomplishments ' for the ORG and ' confirming the confidence of the ORG ( b ) – ORG ' , can not , in the court 's opinion , be interpreted other than as meaning that the applicant had collaborated with the ORG , which is recognised as having been a repressive organisation during the NORP period . Any such collaboration is seen as highly reprehensible by civil society . Taking into consideration that this fact has not been confirmed , the statements seriously affect the applicant 's honour and dignity and cause him non - pecuniary damage and , therefore , should be retracted ... ”

The court ordered the newspaper to publish a retraction , within DATE , of some of the statements in the article of DATE , including the statement “ confirming the confidence of the ORG ( b ) – ORG ” . It further ordered ORG and the newspaper to pay the applicant CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) and MDL CARDINAL ( ORG CARDINAL ) respectively .

The court also found in favour of ORG in a counter - claim in respect of an article allegedly published by the applicant . The applicant appealed the judgment .

On DATE the ORG quashed the judgment of ORG on grounds of procedural error and remitted the case for a fresh judgment by ORG .

Pending the re - hearing of the case , on DATE , GPE Suverană published an article headed “ GPE Suverană does not tolerate accusations and primitivisms ” , which stated , inter alia , that :

“ ... ORG 's article of DATE ... and the inappropriate language used do not represent the editorial policy of this newspaper . Epithets like ' feeble memory ' or ' lack of personal dignity ' [ sic ] , ' exorcising priest ' used by the scientist [ S.]N. towards the scientist PERSON are alien to us .

Moreover , we recall that the article was published DATE and since then , the editorial board has changed , starting with its editor at the time , ORG , and continuing with the political department of the newspaper .

Therefore , we regret the disparaging remarks and immoderate language directed at the historian PERSON , even if we assume our right not to share his political opinions and ideas . ”

In the subsequent proceedings before ORG , ORG stated that during the NORP era nobody would have been sent to GPE for postgraduate studies without the support of ORG and the ORG . However , he accepted that not all those sent for postgraduate studies had been ORG agents .

On DATE ORG dismissed the applicant 's action , finding , inter alia :

“ ... According to the author of the article , he published it in good faith and had no intention to humiliate or defame his former colleague [ Mr Petrenco ] . On the contrary , he said in evidence that , in his personal opinion , PERSON had been a brilliant student and a committed activist , who was well - mannered and respected his elders . The fact that he had become a member of the ORG was not a secret and did not disclose any intention to defame , because everyone has the right to become a member of a political party ...

... the court finds that both [ the author and the applicant ] were former colleagues at the history faculty and had published articles in the press without any intention to defame the other . ”

The applicant appealed .

On DATE the ORG dismissed the appeal , finding that ORG could not be held responsible for expressing his opinions . It considered the distinction between statements of fact and value judgments and stated :

“ ... [ ORG ] considers that the phrases written in the article represent the author 's own subjective opinion of PERSON ...

In a NORP society a person can not be held responsible for expressing his own views ...

The notion of a ' value judgment ' has also to be taken into consideration , which means that a person can not be held responsible for his opinions or his views on certain events or circumstances ... , the veracity of which can not be proved . ”

The applicant lodged an appeal on points of law . He mainly contended that :

“ ... the said article was published by the newspaper in bad faith and the first - instance court wrongly found that ORG publishes articles in the press without any intention to defame the applicant . The defendants knowingly published the article with the aim of damaging the applicant 's honour , dignity and professional reputation .

... the applicant does not object to the author 's right freely to express his views , but he objects to the derogatory remarks in the article , which are not true and , in substance , damage the applicant 's honour , dignity and professional reputation .

The courts disregarded the fact that the defendants had disseminated information which was damaging to [ the applicant 's ] honour and did not apply the provisions of sections CARDINAL and CARDINAL of the Civil Code ... ”

The applicant attached to his appeal a linguistic report on the author 's statements prepared by ORG . The report concluded that ORG had directly insulted the applicant and that the article had damaged his honour , dignity and professional reputation .

On DATE ORG held that the applicant 's appeal was inadmissible as it reiterated the arguments advanced at first instance and before ORG . The court nonetheless briefly considered the issues arising in the case and found , inter alia , that :

“ ... LAW CARDINAL of LAW guarantee the right to freedom of expression , including the right to communicate information and ideas .

Under these circumstances , by dismissing the applicant 's action , the courts have correctly found that a distinction must be drawn between facts and ' value judgments ' .

As the lower courts found in their judgments in the present case , the author 's statements must be treated as ' value judgments ' , a circumstance which excludes liability on the part of the newspaper GPE Suverană for the opinion it has expressed on certain events and circumstances , the veracity of which is impossible to prove .

In the light of the above and taking into consideration that the impugned statements are , in substance , ' value judgments ' ... the appeal on points of law must be dismissed . ”

The Court made no comment on the report attached to the appeal .

According to the applicant , he was not summoned to attend the hearing before ORG .

Article CARDINAL of the LAW guarantees freedom of expression and provides , in so far as relevant , as follows :

“ ( CARDINAL ) NORP The freedom of expression of all citizens ... is guaranteed .

( CARDINAL ) Freedom of expression must not damage the honour , dignity or rights of others ...

( CARDINAL ) Defamation ... is prohibited by law and incurs sanctions . ”

NORP The relevant provisions of LAW in force at the material time read :

Article CARDINAL Protection of honour and dignity

“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek [ an order for ] the retraction of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .

( CARDINAL ) When the media organisation which disseminated such statements is not capable of proving that they correspond to reality , the court shall compel the publishing office of the media organisation concerned to publish , not later then DATE after the judicial decision becomes effective , a retraction of the statements in the same column , on the same page or in the same programme or series of broadcasts . ”

Article CARDINAL/CARDINAL Compensation for non - pecuniary damage

“ The non - pecuniary damage caused to a person as a result of the dissemination through the mass media or by organisations or natural persons of statements which do not correspond to reality , or statements concerning his or her private or family life without his or her consent , shall give rise to an award of financial compensation in an amount to be determined by the court .

The amount of the award determined by the court in each case shall be equal to CARDINAL times the minimum wage if the information has been disseminated by a legal entity and CARDINAL times the DATE wage if it has been disseminated by a natural person .

The immediate publication of an apology or retraction ... before a judgment is handed down in the matter constitutes a reason to reduce the value of any compensation or to exempt the party from the requirement to make a payment . ”

On DATE a new Civil Code entered into force , LAW which reads as follows :

“ ( CARDINAL ) Everyone shall have the right to respect for his or her honour , dignity and professional reputation .

( CARDINAL ) Everyone shall have the right to seek [ an order for ] the retraction of statements which are damaging to his or her honour , dignity and professional reputation , if the person who disseminated them is unable to prove their truthfulness .

( CARDINAL) Anyone whose honour , dignity or professional reputation has been damaged as a result of disseminated information shall have the right to claim compensation for pecuniary and non - pecuniary damage ... ”

The relevant provisions of Government decision no . CARDINAL of CARDINAL DATE on the launch of the Government newspaper , GPE Suverană , read as follows :

“ ( CARDINAL ) ORG newspaper GPE Suverană shall be launched with effect from DATE .

The editor of the Government newspaper shall be appointed by a decision of the Government ... ”

The relevant provisions of Government decision no . CARDINAL of DATE on the winding up of GPE Suverană read as follows :

“ With the purpose of fulfilling the ORG 's obligation to prevent and to limit a ORG monopoly in media ...

( CARDINAL ) The ORG newspaper GPE Suverană ... shall be wound up with effect from DATE ... ”

The Code of Civil Procedure of DATE set out the procedure before ORG . Article CARDINAL provides , in so far as relevant , as follows :

“ Procedure for the examination of the admissibility of an appeal

( CARDINAL ) Once the court has established the existence of CARDINAL of the reasons cited in LAW , a chamber of CARDINAL judges shall decide , in a non - reasoned and non - appealable judgment , on the admissibility of the appeal . In such cases , a report on the inadmissibility shall be prepared which , together with a copy of the appeal and the judgment , shall be held by the court in the relevant case file .

( CARDINAL ) The admissibility of an appeal is decided without summoning the parties . ”

Article CARDINAL ) provides that :

“ In examining the appeal introduced ... the court shall verify , on the basis of the material in the case , the legality of the decision against which the appeal has been lodged , without taking any new evidence . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza

NORP The applicant company is a public company whose registered office is at GPE ( GPE ) .

It had in its possession CARDINAL bills of exchange that it had received from the A. Lda company for a total of QUANTITY . As the bills were not honoured when due , the applicant company issued enforcement proceedings against PERSON in ORG on DATE to recover the outstanding amounts .

After being ordered on CARDINAL DATE to appear before the court of first instance , the defendant company lodged a defence to the enforcement proceedings on DATE ( embargos de executado ) .

On DATE the judge gave directions ( despacho saneador ) setting out the matters that had already been established and those that remained outstanding . After instructions had been sent to the Porto , Vila Real and PERSON courts for witnesses to be heard , the case was set down for hearing on DATE , but had to be adjourned owing to the failure of the applicant company 's lawyer to attend . It was finally heard on DATE .

On DATE the court of first instance found in favour of the defendant company . On DATE the applicant company appealed against that decision to ORG ) . On DATE the case file was transferred to that court .

On DATE the court of appeal overturned the impugned decision and decided to reject the defence .

On DATE when the case file was still with ORG , PERSON applied for legal aid for its legal costs . That application was refused by the reporting judge in an order of CARDINAL DATE . A further application made by PERSON on DATE was likewise turned down on DATE . On appeal by PERSON , a CARDINAL - judge panel of the court of appeal upheld those orders on DATE . PERSON appealed on points of law to ORG ( Supremo Tribunal de Justiça ) on DATE and on CARDINAL DATE the case file was transferred to that court .

NORP In a judgment of DATE ORG dismissed that appeal . On DATE PERSON applied for an order referring the issue to the plenary court ( tribunal pleno ) , but the reporting judge dismissed the application . ORG upheld that decision in a judgment of CARDINAL DATE . PERSON then lodged a further appeal which was declared inadmissible by the reporting judge on DATE . That decision was subsequently upheld by ORG on DATE . Then , on DATE , PERSON challenged the bill of costs , but on CARDINAL DATE the reporting judge ordered the transfer of the case file to the court of first instance on the ground that the challenge was intended solely to delay recovery of the debt .

On DATE a company , ORG , issued a summons opposing enforcement ( embargos de terceiro ) . In an order of CARDINAL DATE the judge decided that the enforcement proceedings should be stayed until the third - party summons had been heard . However , on DATE the judge stayed the summons until PERSON defence to the enforcement proceedings had been heard . On DATE , in the light of the decision taken in the enforcement proceedings , the judge decided to proceed with the examination of the third - party summons .

On DATE the judge gave directions setting out the matters that had already been established and those that remained outstanding .

The proceedings are still pending before ORG .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Oliver Kask;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The applicant served as a judge at ORG at the material time . From DATE he was in charge of a criminal case where NORP , a businessman , was CARDINAL of the defendants . The case involved several charges including tax evasion , money laundering , aggravated breach of public order and bribery .

On DATE the security police received NORP ’s statement according to which his business partner DATE who had owed NORP ’s company a substantial sum of money – had refused to pay back the loan for an extended period . Instead , ORG had said that he knew the applicant well , having shared a dormitory room with him during their law studies , and that a judgment in NORP ’s favour could be arranged as long as he did not insist on the repayment of the loan . Furthermore , ORG had demanded CARDINAL NORP kroons ( EEK ) ( MONEY ( ORG ) ) as a “ DATE good - will gesture ” and a further EEK CARDINAL ( ORG CARDINAL,CARDINAL ) for NORP ’s acquittal .

On DATE the police initiated criminal investigation in respect of the offences of accepting and arranging a bribe .

On DATE a prosecutor authorised the covert surveillance of ORG and on DATE the president of ORG authorised the interception and undercover audio recording of ORG ’s conversations . On DATE and DATE similar authorisations were given in respect of the applicant . The authorisations were subsequently extended on several occasions .

On DATE the president of ORG authorised a simulation of the offence of giving a bribe by NORP in order to entrap the applicant and ORG as an intermediary .

On DATE D. gave ORG EEK CARDINAL ( EUR CARDINAL ) .

On DATE NORP gave ORG EEK CARDINAL ( ORG CARDINAL,CARDINAL ) . Within TIME , N. ’s car was stopped by the police ; he was arrested and the money was seized .

NORP Immediately thereafter , PERSON was interviewed as a suspect . In response to the question as to whether he had demanded money from NORP for transferring it to the applicant as a bribe for a judgment in NORP ’s favour , he replied that he had not demanded any money from NORP but had just communicated to him what the applicant had demanded . According to ORG , the applicant had said that if NORP paid him EEK CARDINAL , he would give a judgment in NORP ’s favour . Under instructions from the security police , ORG arranged a meeting with the applicant DATE .

On DATE at TIME the president of ORG authorised a simulation of the offence of arranging a bribe by ORG in order to entrap the applicant .

Also on DATE N. , equipped with recording devices , met up with the applicant and gave him EEK CARDINAL . TIME the applicant was arrested and detained as a suspect . In the course of a search carried out on DATE he surrendered EEK CARDINAL . The applicant was released on DATE .

On DATE the following press release was published on the Internet site of ORG under the title “ A judge suspected of accepting a bribe ” :

“ On DATE TIME , in the course of a simulation of an offence , officers of the security police arrested a judge of ORG suspected of accepting a large bribe .

The judge is suspected of demanding a large bribe from an accused person through an intermediary for making a more favourable judgment in respect of [ him ] . The exact amount of the bribe can not be disclosed at the moment in the interests of the investigation . On TIME DATE the judge suspected of bribery accepted part of the sum [ he had been demanding ] from a person involved in the simulation of the offence and the security police and ORG conducting the investigation decided to arrest him shortly after accepting the money . The judge suspected of bribery did not have time to make the judgment in respect of the accused person .

On DATE investigators carried out necessary investigative steps after which the suspect was released .

The criminal proceedings concerning the suspicion in question were initiated DATE . The security police and ORG conducting the preliminary investigation do not consider it possible at present to disclose other details related to the suspicion referred to . LAW stipulates that accepting a large bribe is punishable by imprisonment of DATE . According to the laws and legal acts in force a bribe comprises a large amount of DATE ( CARDINAL ) kroons . ”

Within DATE the identity of the judge suspected of having accepted a bribe became known . Prosecutor PERSON who was dealing with the case was subsequently quoted directly or indirectly on several television programmes and in several newspaper articles . These included , among others , the following extracts .

On DATE in a news programme on PERSON , a public television channel , prosecutor PERSON was shown saying :

“ Suspicion that [ the applicant ] might accept a bribe emerged when the person from whom the bribe was allegedly demanded made a statement to that effect to the security police . ”

On DATE in a news programme on ORG , a private television channel , prosecutor PERSON was shown saying :

“ The case commenced when the security police were contacted by a person from whom the judge allegedly demanded the bribe . ”

In respect of the simulation of the offence carried out by the security police , prosecutor PERSON noted :

“ The simulation [ of the offence ] was successful . Unfortunately I can not mention any specific amounts at the moment . ... ”

On DATE the DATE newspaper ORG published an article by PERSON containing the following passage :

“ [ Prosecutor PERSON ] , who is in charge of the criminal investigation , [ emphasised ] to Postimees DATE that the case had not been [ made up ] or provoked by [ officers ] of the security police . ‘ Surveillance activities related to the suspected bribery of a judge commenced in January,’ PERSON said . ‘ The criminal proceedings were initiated on the basis of very specific information when a person turned to the security police with his [ problem].’ ”

On DATE the newspaper ORG published an article by ORG containing the following passage :

“ ‘ [ I do ] not comment or rebut,’ said prosecutor [ ORG ] , who is in charge of the investigation and who parried all [ questions relating to the ] facts of the bribery scandal . ‘ A simulation has been carried out and the main evidence as such has been gathered . I expect that additional interviews and technicalities may take some weeks,’ [ ORG ] added . ”

On DATE the DATE newspaper ORG published an article by PERSON containing the following passages :

“ Prosecutor [ ORG ] is asserting that it was [ the applicant ] himself who was demanding the money .

‘ We are not [ fishing ] to see whether a judge accepts a bribe or not,’ prosecutor [ ORG ] noted , [ adding that ] [ the applicant ] was ‘ very ORG . ”

On DATE a public prosecutor requested permission from ORG to draw up a bill of indictment against the applicant . On DATE ORG made a proposal in this regard to the President of the Republic who gave his authorisation on DATE .

On DATE ORG submitted the bill of indictment to ORG . The applicant was charged under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( Karistusseadustik ) with an aggravated offence of demanding a large bribe ( in excess of EEK CARDINAL ( EUR CARDINAL ) ) .

The bill of indictment , which extended to CARDINAL pages , contained a detailed description of the facts as deemed established by the prosecution , a list of a number of documents and other items attached to it , such as written and recorded evidence and records of various procedural acts , and a statement of the charges . The factual part , entitled “ Circumstances of the offence ” , contained , inter alia , the following passages :

“ At DATE ... [ the applicant ] proposed that [ NORP ] paid him CARDINAL kroons through an intermediary , [ N. ] , as a bribe for which the judge ... would take procedural decisions in favour of him and also acquit him .

... [ N. ] passed on [ the applicant ’s ] demands for a bribe according to which CARDINAL kroons had to be paid as a first instalment and a further CARDINAL kroons were to be paid later .

On DATE [ NORP ] called [ N. ] ... . When they met , [ NORP ] gave [ N. ] CARDINAL kroons . [ N. ] looked at the money and said that it was not enough . [ NORP ] handed over a further CARDINAL kroons .

On DATE ... [ N. ] sent a text message to [ the applicant ] asking to meet him ... . ... N. got into [ the applicant ’s ] car ... . ... [ The applicant ] signalled that the money could be passed over . [ N. ] took a paper bag containing CARDINAL kroons from his inside pocket and placed it between the CARDINAL front seats . ... ”

The nature and amount of damage caused by the offence was formulated as follows in the bill of indictment :

“ No pecuniary damage has been caused by the offence committed by [ the applicant ] . The offence was committed by a judge who made use of his official position and breached an important principle of a ORG governed by the rule of law , according to which justice is administered by an independent , impartial and honest court . The reputation of the law - enforcement agencies of GPE as a whole has been discredited . ”

The statement of charges against the applicant included the following passages :

“ [ The applicant ] is charged with accepting a large bribe which involved demanding the bribe ... under LAW ) and ( CARDINAL ) of [ LAW ] .

... When the car stopped [ the applicant ] took from [ N. ] , as agreed , the first part of the sum of the bribe that had been demanded , cash in the amount of CARDINAL kroons , which [ NORP ] had given ... to [ N. ] to pass on to [ the applicant ] for taking decisions in favour of [ NORP ] in the criminal case ... and for acquitting him later . Payment of the remaining sum – CARDINAL kroons – was to take place later .

... By demanding a bribe from [ NORP ] and accepting part of it , that is CARDINAL kroons , through the intermediary [ N. ] , [ the applicant ] breached an important principle of a ORG governed by the rule of law , according to which justice is administered by an independent , impartial and honest court , whereby [ he ] committed an offence under LAW ( CARDINAL ) and ( CARDINAL ) of [ LAW ] . ”

On DATE a press release titled “ The judge ’s criminal case has arrived at the court ” was published on the Internet site of ORG . It read :

“ The state prosecutor [ ORG ] has sent a criminal case to court in which [ the applicant ] , a judge of ORG , is charged with having demanded a large bribe .

The facts established by the security police in the course of the preliminary investigation give ground to charge [ the applicant ] , who served as a judge of ORG , with demanding a large bribe from an accused person through an intermediary . In return , the judge promised to take decisions in favour of the accused in the course of the court proceedings and also to acquit him . [ The applicant ] did not have time to make a judgment in the case in question as , because of the present criminal proceedings , the case was transferred to another division of the court .

The judge wanted to receive the money from the accused in CARDINAL instalments . At DATE [ the applicant ] wanted to receive CARDINAL kroons from the accused in addition to the CARDINAL kroons that had already been requested through the intermediary . On DATE the judge accepted the CARDINAL kroons in cash from the intermediary .

Officers of the security police arrested [ the applicant ] , who was serving as a judge , on suspicion of having accepted a large bribe on DATE , after he had accepted CARDINAL kroons in cash from the intermediary .

[ The applicant ] , having demanded and partly accepted a bribe from an accused , committed [ the offence of ] demanding a large bribe . The precise classification of the offence with which [ the applicant ] , a former judge of ORG is charged , is LAW ( CARDINAL ) and ( CARDINAL ) of LAW . In the event that he is convicted , CARDINAL years’ imprisonment may be imposed as punishment .

[ The applicant ] , a judge , made use of his official position and breached an important principle of a state governed by the rule of law , according to which justice is administered by an independent , impartial and honest court . ”

By ORG decision of DATE the applicant was committed for trial . The first hearing was scheduled for DATE .

On DATE Postimees published an article based on a press release from a news agency , ORG , which included the following passage :

“ According to the [ public ] prosecutor , [ the applicant ] asked [ D. ] for the total sum of CARDINAL kroons , of which he received CARDINAL in the course of the simulation of the offence through an intermediary , [ D. ’s ] business partner [ N. ] . ‘ [ The applicant ] wished to receive the money in instalments,’ [ ORG ] noted . ”

The online version of the article on the newspaper ’s website also contained the following sentence :

“ ‘ According to the information gathered during the investigation , the initiative of asking for the money came from the judge and there was no PERSON [ V. ] affirmed ... ”

On DATE the trial started at ORG .

On DATE ORG published an article by PERSON entitled “ A judge asked for bribe in a jacuzzi ” . Although no reference was made to the sources of information in the article , the applicant submitted that the information , which involved private information and delicate personal data , had originated from prosecutor PERSON The article does not contain an assessment by the prosecutor of the applicant ’s guilt .

On DATE in a news programme on ORG prosecutor PERSON was shown saying :

“ [ The applicant ] is charged with having demanded a large bribe from an accused person in criminal proceedings of which he was in charge . In return he promised to take decisions in favour of the accused in the course of the criminal proceedings and also to acquit him . ”

Apparently in reply to a journalist ’s question , she continued :

“ Indeed , as these names have already been mentioned in the press , it can be affirmed that the person from whom he demanded the bribe was [ NORP ] . The total sum the judge wanted was CARDINAL kroons . ”

Apparently in reply to a question about the applicant ’s possible motives , the prosecutor said :

“ He has indeed made statements during the preliminary investigation but I can not comment on their content as this might cause damage to the exercise of his defence rights . ”

DATE ’s guilt . The court dismissed the request . It examined the newspaper articles submitted by the applicant and found that they contained information received from the prosecutor . However , the court found that the articles did not indicate that the prosecutor had treated the applicant as being guilty . Furthermore , it considered that increased public interest in the case where the suspect was a judge was understandable and justified .

At the hearing of CARDINAL DATE the applicant again requested the removal of the prosecutor on similar grounds as on the previous occasion . The court refused to examine the request finding that it had already dismissed a similar request and no new arguments had been put forward .

At the hearing of CARDINAL DATE the prosecutor dropped the charges in respect of the element of demanding the bribe . She also requested that the applicant be convicted of an attempted offence .

On DATE the ORG delivered a judgment by which the applicant was convicted of attempting to accept a bribe ( Article CARDINAL § CARDINAL of LAW ) . He was sentenced to DATE imprisonment .

NORP The court noted that in DATE N. had already made the applicant an offer concerning the bribe . On DATE the applicant consented to accepting the bribe and took the money on DATE , being aware that it had come from NORP in connection with the criminal case in which he was a defendant . The court relied on the statements of ORG and NORP as well as the undercover recordings and surveillance reports . It found that the charges concerning the applicant ’s alleged demand for a bribe of EEK CARDINAL had not been proven . These charges had been based on the statements of ORG and were only partly supported by NORP ’s submissions who , in turn , relied on what he had heard from ORG court considered that ORG had not only transferred information between the applicant and NORP but had also pursued his own agenda . It considered it probable that ORG had presented the applicant ’s readiness to accept a bribe to NORP as a demand for bribe . Applying the principle that any reasonable doubt should benefit the accused , the court only considered it established that the applicant had agreed to accept , and had accepted , a bribe of EEK CARDINAL . Furthermore , the court classified it as an attempted offence .

The applicant filed an appeal with ORG against ORG judgment .

On DATE the applicant requested that ORG remove the prosecutor . The court dismissed the request . It noted , inter alia , that the newspaper articles had not influenced the court and that ORG had in fact dismissed certain charges against the applicant .

By a judgment of DATE ORG upheld ORG judgment .

On DATE ORG declined to examine the applicant ’s appeal .

In the meantime , in DATE the applicant lodged a claim for compensation for non - pecuniary damage against ORG with ORG . Referring to the press releases , newspaper articles and television programmes quoted above ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE ) , he argued that the prosecutor ’s public statements made during the criminal proceedings had not respected his presumption of innocence and that his right to respect for his private life had been infringed . The applicant contended that the prosecutor , being an authoritative source , had given a legal assessment that the applicant had committed a crime . She had addressed matters such as the classification and degree of the offence as well as possible provocation and presented her opinion on these matters to the public as a statement of fact . The applicant was dissatisfied that in the interviews given in DATE the prosecutor had given the impression that the criminal proceedings had been successful and everything was clear , the evidence had been gathered and what had remained had only been technicalities . The prosecutor had persuaded the public that it had been the applicant who had demanded the bribe and had disclosed the amounts of the bribe in question . Prosecutor PERSON had also given a number of interviews after the commencement of the court proceedings from which it could be understood that the whole matter was an extremely simple and clear story .

ORG objected . It contended that under LAW ( NORP teabe seadus ) it was required to disclose to the media information concerning criminal proceedings in respect of which public interest could be anticipated . The applicant had not been named in the press release of DATE . Furthermore , the choice of words by prosecutor PERSON in various interviews had made it unequivocally clear that the applicant had been a suspect . The press release of DATE had been based on the bill of indictment which represented the position of ORG to be proved in court . ORG had sought to disclose a minimal amount of precise information to the public .

In a written statement to ORG by the head of the public relations department of ORG it was noted that the press release of DATE had been prompted by a telephone call from a journalist who had heard about the arrest of a judge and had sought confirmation of that information . It was considered that rumours could have caused damage to the investigation , the suspect and the judiciary as a whole . The press release had been based on facts and contained no personal references . On DATE several media channels interviewed prosecutor PERSON who gave no further information than was contained in the press release . It was noted that the media had also used sources other than ORG . In respect of the press release of DATE it was noted that ORG usually gave information concerning criminal cases that had attracted public interest . In order to secure equal treatment of different media channels , press releases summarising the content of the charges were issued .

On DATE ORG dismissed the complaint , finding that ORG had released the information in compliance with LAW ORG seadustik ) . Furthermore , it held as follows :

“ CARDINAL . In assessing the lawfulness of the actions of ORG , it is necessary to clarify on which considerations they were taken . According to the submission of [ ORG ] , [ its ] press officers and prosecutor [ ORG ] acted in order to give to the media , which demonstrated extraordinarily high interest in the criminal case in question , information that was as precise and as minimal as possible .

The court agrees with the [ ORG ] that there was elevated public interest in the criminal case in question . This is already demonstrated by the fact that the criminal proceedings were extensively covered by the press . [ This is ] also [ confirmed ] by ORG numerous [ requests for information ] to the [ ORG ] ... . There is no dispute between the parties about the fact that the criminal case was extensively covered by the press and this can also be concluded on the basis of the materials of the case . As the criminal proceedings were being conducted in respect of a judge who had also been arrested as a suspect , the court considers that the elevated interest of the public in the criminal case was justified . The court considers it a matter of general knowledge that the press , in particular the part of it that qualifies as non - quality press , also tends to publish untrue information . Therefore the court agrees with the [ ORG ] that [ its ] ... communication with the media is also very important in order to avoid , or at least minimise , the spread of misinformation .

NORP The court has not established that the information released by ORG to the press in the course of the preliminary investigation of the criminal case ... went beyond what was objectively necessary for informing the public or that the applicant ’s interests were excessively interfered with .

It appears from the materials of the case that ORG declined to release detailed information on the circumstances of the offence at the time when [ the applicant ] had the status of suspect . The press release of ORG of DATE and the disclosure of information ( interviews ) by [ the prosecutor ] in charge of the criminal proceedings to the programmes PERSON of [ ORG ] and PERSON of FAC as well as the newspapers Postimees , ORG and ORG ... fell within this period . It can be clearly understood from the press release and the public prosecutor ’s statements that [ ORG ] merely suspected the applicant of having accepted a bribe . The [ applicant ’s ] allegation that the identity of the judge in respect of whom the proceedings were being carried out was disclosed by ORG is incorrect . ... [ In ] ORG press release of DATE ] it is stated that ‘ the judge suspected of accepting a large bribe who was arrested by the security police in the course of the simulation of the offence is [ the applicant]’ ... . Thus , the identity of the judge suspected of the offence was already known to the public when [ the prosecutor ] used [ the applicant ’s ] name in communication with the media . Therefore the use of [ the applicant ’s ] name by [ the prosecutor ] after ORG press release of DATE ] did not aggravate [ the applicant ’s ] situation .

Information about the classification and degree of the offence and the amounts of the bribe were disclosed by ORG only after the drawing up of the bill of indictment when [ the applicant ’s ] status had changed to an accused . Proceeding from LAW of [ LAW ] , the drawing up of the bill of indictment demonstrates the conviction of ORG that all the necessary evidence had been gathered . Publication of the press release of DATE by ORG and disclosure of information ( interviews ) by [ the prosecutor ] in charge of the criminal proceedings to the news agency ORG , newspaper ORG , and the programme ORG on [ Eesti Televisioon ] ... fall within this period . The press release and the subsequent imparting of information were based on the official bill of indictment . The court agrees with the [ ORG ] that giving more detailed information about the bill of indictment than the suspicion is legitimate since the bill of indictment represents the result of the pre - trial proceedings and indicates that the criminal proceedings are about to resume in court .

The court does not agree with [ the applicant ’s ] position that ORG violated the principle of the presumption of innocence . The presumption of innocence is protected by LAW ... . Nevertheless , addressing criminal proceedings in the media before passing a judgment is not completely restricted by the presumption of innocence . It has been found in the case - law that covering a case in the media during the pre - trial proceedings may result in a violation of the presumption of innocence but this does not mean that nothing about the pre - trial proceedings may be published in the media ( see the judgment of DATE of ORG in case no . DATE ) . The content of what is disclosed to the media about the criminal proceedings is decisive – if only objective information reaches the public , the court considers that the publication of such information does not interfere with the presumption of innocence . It has not been established in the present case that ORG informed the public about the criminal proceedings in a subjective manner or gave an opinion about [ the applicant ’s ] guilt . [ LAW ] does not prohibit informing the public about proceedings when no opinion about the guilt is given ( PERSON v. GPE , CARDINAL DATE , Reports of Judgments and Decisions DATE ) .

In sum , the court considers that ORG objectively informed the public about the criminal proceedings . The information given to the press did not exceed the limits of the objective need to inform the public , nor did it excessively damage the interests of [ the applicant ] . As the actions of ORG were lawful there is no ground to allow the claim for damages ... . ”

DATE . On DATE ORG upheld ORG judgment . It held , inter alia , as follows :

“ The public interest and the interest of the person concerned have to be assessed in the specific circumstances . [ The applicant ’s ] position that in the present case the statements of ORG related to an individual case in respect of which there could be no public interest can not be sustained . In the case in question there was a suspicion that a judge had committed an offence of accepting a bribe . [ ORG ] correctly notes that the initiation of criminal proceedings related to the suspected acceptance of a bribe by a judge concerns the exercise of functions by a high official . The suspicion that a high official expected to enjoy public confidence has accepted a bribe is an important event justifying elevated public interest . It also justifies ORG informing the public of such an important event .

ORG concluded that the information disclosed about the criminal proceedings had not exceeded the limits of the objective need to inform the public and that the presumption of innocence had not been violated . ORG agrees with that assessment . [ The applicant ] validly argues that the [ case of PERSON ] , referred to in the judgment , concerns the disclosure of information in respect of ongoing criminal proceedings . However , the case - law of the [ ORG ] does not prohibit disclosure of information concerning pre - trial proceedings and ORG in case no . CARDINAL has also admitted that media coverage of a case during pre - trial proceedings may in itself result in a violation of the presumption of innocence , but this does not mean that nothing at all may be disclosed about pre - trial proceedings .

... [ The ] ORG agrees with the position of the first - instance court that there is no ground to allow the claim for damages since the actions of [ ORG ] in disclosing the information were lawful and this was done without excessive damage to the rights of [ the applicant ] . ”

Article CARDINAL § CARDINAL of the LAW of GPE ( ORG põhiseadus ) and LAW ORG seadustik ) provide that no one shall be considered guilty of a criminal offence before a convicting judgment has entered into force in respect of him or her .

According to Articles DATE and CARDINAL of LAW a suspect or an accused may request the removal of a prosecutor if he or she lacks impartiality but has not withdrawn himself or herself . In pre - trial proceedings such a request is resolved by ORG and in court proceedings by the court dealing with the case .

LAW ( ORG seadus ) sets out the rules concerning compensation for non - pecuniary damage ( mittevaraline kahju ) in DATE , which stipulates as follows :

“ ( CARDINAL ) A natural person may claim financial compensation ( rahaline hüvitamine ) for non - pecuniary damage resulting from wrongful ( süüline ) harm to his or her dignity , damage to health , deprivation of liberty , violation of the inviolability of the home or private life or of the confidentiality of correspondence , or defamation of the person ’s honour or good name .

( CARDINAL ) NORP - pecuniary damage shall be compensated for in proportion to the gravity of the offence ( õiguserikkumine ) ... . ”

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ( ORG seadustik ) , as in force at the material time , provided that a claim for compensation for damage caused in public law relationships could be lodged with an administrative court .

Paragraph CARDINAL of section CARDINAL of LAW ( ORG ) , as in force at the material time , provided :

“ In the case of an obligation to compensate for damage arising from ... violation of a personality right , in particular from defamation , the obligated person shall compensate the aggrieved person for non - pecuniary damage only if this is justified by the gravity of the violation , in particular by physical or emotional distress . ”

Section CARDINAL of LAW stipulates that the causing of damage is unlawful if , inter alia , the damage is caused by the violation of a personality right of the victim . LAW further provides :

“ ( CARDINAL ) The defamation of a person , inter alia by passing undue judgment , by the unjustified use of the name or image of the person , or by breaching the inviolability of the private life or another personality right of the person , is unlawful unless otherwise provided by law . Upon the establishment of unlawfulness , the type of violation , the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration .

( CARDINAL ) The violation of a personality right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests . In such cases , unlawfulness shall be established on the basis of the comparative assessment of different legal rights and interests protected by law . ”

“ ( CARDINAL ) The violation of personality rights or interference with the economic or professional activities of a person by way of disclosing incorrect information or by the incomplete or misleading disclosure of information concerning a person or the activities of the person is unlawful unless the person who discloses such information proves that , upon the disclosure thereof , he or she was not aware and was not required to be aware that such information was incorrect or incomplete .

( CARDINAL ) The disclosure of defamatory information concerning a person , or information which may adversely affect the economic situation of a person , is deemed to be unlawful unless the person who discloses such information proves that the statement is true .

( CARDINAL ) Regardless of the provisions of subsections ( CARDINAL ) and ( CARDINAL ) of this section , the disclosure of information is not deemed to be unlawful if the person who discloses it or the person to whom such information is disclosed has a legitimate interest in the disclosure , and if the person who discloses the information has verified it with a thoroughness which corresponds to the gravity of the potential violation .

( CARDINAL ) In the case of the disclosure of incorrect information , the victim may demand that the person who disclosed it acknowledge that it is incorrect or publish a correction at his or her own expense , regardless of whether the disclosure of the information was unlawful or not . ”

“ ( CARDINAL ) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused , the victim or the person who is threatened has the right to demand that behaviour which causes damage be terminated or the making of threats of such behaviour be refrained from . In the case of bodily injury , damage to health , violation of the inviolability of personal life or any other personality rights , it may be demanded , inter alia , that the tortfeasor be prohibited from approaching others ( restraining order ) , the use of housing or communication be regulated , or other similar measures be applied .

( CARDINAL ) The right to demand that behaviour which causes damage as specified in subsection ( CARDINAL ) of this section be terminated does not apply if it is reasonable to expect that such behaviour can be tolerated in human coexistence or that it is justified by significant public interest . In such a case the victim still has the right to make a claim for compensation for damage caused unlawfully .


The applicants , PERSON , PERSON , PERSON , PERSON , PERSON , Mr Yücel Tanrıgünverdi , Mr PERSON , PERSON , PERSON and Mr PERSON , are NORP nationals who were born in DATE ( DATE according to the former NORP calendar , as submitted by the applicant ) , DATE , DATE , CARDINAL , DATE , CARDINAL , DATE , DATE , DATE and DATE respectively , and live in PERSON .

They are represented before the ORG by PERSON , a lawyer practising in GPE .

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

On DATE GPE issued an order to expropriate a plot of land belonging to the applicants . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicants on DATE .

Following the applicants’ request for additional compensation , ORG of first instance ordered an expert opinion to be prepared to assess the value of the plot . As the parties mutually objected to the opinion , the court ordered a second opinion to be drawn up by a separate committee of experts .

On DATE , seeing that the CARDINAL assessments were parallel , the court awarded the applicants a corresponding amount of additional compensation plus interest at the statutory rate .

However , on DATE ORG quashed the judgment and remitted the case back to the first - instance court for further examination .

Having obtained a revised expert opinion , ORG issued a new judgment on DATE . It awarded the applicants an additional compensation of MONEY ( TRL ) plus interest at the statutory rate .

On DATE ORG upheld this subsequent judgment . On DATE ORG rejected a request for rectification and thereby concluded the court proceedings .

On DATE the GPE paid the applicants the sum of ORG , interest included .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . By a letter of DATE , the applicant sought to claim a ORG ( “ WP ” ) . On DATE , ORG ( “ DWP ” ) asked the applicant to fill in a claim form which he duly did and returned to them . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . By a letter of DATE the applicant appealed . On DATE the appeal was heard and dismissed . On DATE the applicant appealed to the ORG Commissioner who on DATE issued a direction stating that he was minded to refuse the appeal .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The first applicant , PERSON , is a GPE national of NORP origin , born in DATE and living in GPE . The second , third , fourth and fifth applicants , PERSON , PERSON , ORG and GPE – the first applicant ’s children DATE are NORP nationals , born in DATE , DATE and DATE respectively . They currently live in GPE with their mother . The applicants are represented before the ORG by Mr PERSON GPE , a lawyer practising in Hapert .

In DATE the first applicant ( “ the mother ” ) was in the process of getting a divorce from her NORP husband , father of the other applicants ( “ the children ” ) . She submitted that her husband did not meet his responsibilities as head of the family , was frequently inebriated , abused her and the children , did not provide for basic DATE needs and repeatedly forced her out of the house at knifepoint . On DATE , while the divorce proceedings were still ongoing , the mother left GPE and came to the GPE where she met and settled with a GPE national . On DATE she was granted a residence permit for the specific purpose of living with her partner . The father retained custody of the children who remained with him in GPE . The mother pursued legal proceedings from the GPE in order to obtain a divorce as well as custody of the children .

In DATE the mother was granted custody of the children , but this decision was appealed by the father . In a final decision of DATE she was granted custody . According to the mother ’s submissions , she subsequently started preparations for the children to join her in the GPE . Her partner , however , was reluctant to have the CARDINAL children coming to live with them .

On DATE the mother obtained GPE nationality . In DATE the relationship between the mother and her partner ended and she settled in a place of her own .

In DATE the children were granted permission by their father to leave GPE in order to join their mother . On DATE they entered the GPE on a short stay visa ( visum voor kort verblijf ) , granted for the purpose of visiting their mother and valid for DATE . They have been living with their mother since that time . On DATE the children lodged a formal application for a residence permit ( vergunning tot verblijf ) in order to stay with their mother .

On DATE the Deputy Minister of Justice ( ORG ) rejected the children ’s request considering that the criteria for family reunion had not been met given that , firstly , the close family ties ( gezinsband ) between mother and children must be considered to have been severed and , secondly , the mother had insufficient means of subsistence . The Deputy Minister also found that this decision did not entail a breach of LAW , since it did not prevent the applicants from continuing to exercise their family life as they had done prior to the children ’s arrival in the GPE . Furthermore , there were no impediments for the mother to follow her children to a place outside the GPE .

On DATE the children filed an objection ( bezwaar ) against this decision . On DATE the Deputy Minister informed the children that they were not allowed to await the outcome of their objection in the GPE . On DATE the children filed a request with ORG ( arrondissementsrechtbank ) for a provisional measure ( voorlopige voorziening ) that would allow them to remain in the GPE pending the proceedings on their objection .

On DATE the Deputy Minister rejected the objection . The children subsequently filed an appeal against that decision with ORG , amending their request for a provisional measure in that they now wished to be allowed to await the outcome of the appeal proceedings in the GPE .

On DATE ORG rejected the appeal , as well as the request for a provisional measure . It confirmed the Deputy Minister ’s assessment that the close family ties between the mother and the children had been severed . ORG held in this respect that the mother had failed to show that close family ties with her children had been maintained either through parental decisions or through financial support , even after she had obtained custody of them . ORG attached particular importance to the fact that it was only in DATE that the mother had taken concrete steps to have her children join her in the GPE and not already in DATE and DATE when she had obtained custody of them .

ORG saw no merit in the arguments that refusing the children residence would amount to a violation of LAW . In this context it had regard to the fact that the proceedings concerned a request for a first admission ( eerste toelating ) to the GPE , rather than a refusal to extend existing residence . It further held that there were no objective obstacles to the applicants’ family life being exercised elsewhere DATE the mother was free to develop family life with her children in GPE . ORG concluded that a proper balance had been struck between the interests of the applicants and those of society as a whole , the latter interest being served by a restrictive immigration policy .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .

At the time relevant to the present application , the admission , residence and expulsion of aliens were regulated by LAW DATE ( “ the LAW ” - Vreemdelingenwet DATE ) . On DATE a new Aliens Act entered into force but this has no bearing on the present case .

Under LAW paragraph CARDINAL of the LAW , a residence permit may be refused on public interest grounds ( gronden aan het algemeen belang ontleend ) .

In view of the situation in the GPE as regards population size and employment , Government immigration policy DATE defined at the time in LOC DATE ( “ the Circular ” - Vreemdelingencirculaire DATE ) DATE is aimed at restricting the number of aliens admitted to the GPE . In general , an application for a residence permit in the GPE is granted only if the individual ’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so ( LAW ) .

The admission policy for family reunion purposes was laid down in LAW of the Circular . It provided that the following persons , where relevant , may qualify for family reunion if certain conditions ( relating to matters such as public policy and means of subsistence ) are met :

– a person ’s spouse ,

– a minor child born of the marriage who actually belongs to the family unit ( gezin ) , and

– a minor child born outside the marriage who actually belongs to the family unit ( e.g. a child of CARDINAL of the spouses from a previous marriage or a foster child ) .

The phrase “ actually belonging to the family unit ” ( “ feitelijk behoren QUANTITY ” ) used in GPE law only partly overlaps with the term “ family life ” in LAW . The former is understood to mean , for instance , that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the GPE already existed in another country and have been maintained . For the rest , the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case . Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation , the way in which the relationship between parent and child has been developed during the separation , the parent ’s involvement in the child ’s care and upbringing , custody arrangements , the amount and frequency of the parent ’s financial contributions to the child ’s care and upbringing , the parent ’s intention to send for the child as soon as possible and his / her efforts to do so , and the length of time that the child has lived in a family other than with the parent . Living together in the GPE without a permanent residence permit is not seen as restoring severed family ties .


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

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

In DATE ORG ( " FAC " ) was investigating a fraud involving GPE MONEY . The money obtained from the victim had passed through the hands of the applicant who was a solicitor practising in GPE or through a company with which the applicant was connected .

By letter dated DATE , a lawyer employed by the ORG made a formal request to the Attorney - General for GPE for his assistance in the investigation of the fraud . The letter requested the Attorney - General to exercise his powers to summon the applicant for an interview about the transactions . It presented the facts as they appeared to the ORG and depicted the applicant ’s part in the transaction in such a way as to suggest that the FAC suspected him of being a party to the fraud . The letter concluded by stating that , given the facts outlined , the ORG considered the use by the Attorney - General of the relevant power to summon to be justified and desirable and it invited the Attorney - General to authorise that ORG lawyer and a police officer to exercise those powers on his behalf .

On DATE , the ORG lawyer and a colleague called upon Mr R who worked for ORG in the administration of the solicitors’ compensation fund to talk about the transaction which had given rise to a claim by the victim against the fund . The ORG lawyer made a file note of the interview which recorded Mr R ’s view that the applicant should be struck off the roll of solicitors and the GPE lawyer ’s contention that the applicant was a co - conspirator . On DATE the Attorney - General sent the applicant a formal notice requiring him to attend for an interview but the applicant could not attend due to illness

CARDINAL individuals were indicted on charges of conspiracy to defraud and eventually convicted . A third suspect was in GPE and died before an application for extradition had run its course . The applicant , despite the suspicions noted above , was not charged .

CARDINAL of the defendants had asked the applicant to give evidence on his behalf and , consequently , gave the applicant a file of documents which included “ unused material ” which had been disclosed , in accordance with recently established obligations , by the prosecution . The file included a copy of the letter of CARDINAL DATE to the Attorney - General from the ORG and the file note of the meeting between the ORG lawyer and PERSON

The applicant therefore commenced an action for libel against the ORG , ORG , the GPE lawyer and PERSON The applicant alleged that the letter contained a libel published by the ORG and the ORG ’s lawyer to the Attorney - General , that the file note contained a libel published by the ORG and the ORG ’s lawyer to Mr R as well as a libel published by Mr R to the ORG ’s lawyer and that both documents had been published by the ORG ’s lawyer by their disclosure to the relevant defendant ’s solicitor .

All CARDINAL defendants took out summonses to strike out the action as an abuse of process . On DATE , the High Court judge struck out the action on the ground that the disclosure of the CARDINAL documents to the defendant ’s solicitors was subject to an implied undertaking that they would not be used for any purpose other than that defendant ’s defence . The applicant could not , therefore , use them as the basis of a libel action without the leave of the court .

The applicant appealed . Shortly before his appeal was heard , the case of PERSON v. PERSON ( [ DATE ] Q.B. CARDINAL ) was decided by ORG . That court found that material disclosed by the prosecution to a defendant in criminal proceedings , whether obtained by compulsion or voluntarily , was not subject to any implied undertaking analogous to that which already existed in relation to material discovered in civil proceedings .

ORG dismissed the applicant ’s appeal in DATE . It regarded the PERSON v. PERSON decision as a binding authority which obliged it to hold that the grounds upon which ORG had struck out the action could not be sustained . But the court accepted the argument that the proceedings could be struck out as a result of an immunity from suit because the documents were brought into existence for the purposes of a criminal investigation .

The applicant appealed to ORG on the ground that ORG had extended the principle of immunity from suit beyond its proper sphere . The respondents , on the other hand , argued that the PERSON v. PERSON case had been wrongly decided and that ORG judgment ought also to be upheld on the basis of the “ implied undertaking ” .

On DATE , ORG rejected the applicant ’s appeal and upheld the respondents’ ( PERSON v. ORG [ DATE ] A.C. CARDINAL ) . ORG were unanimous that the documents disclosed by the prosecution to the defence were disclosed subject to an implied undertaking to the court not to use the documents for any other purpose other than the conduct of the defence . The applicant ’s attempt to do so was accordingly an abuse of process and had been rightly struck out on that ground . CARDINAL of ORG further upheld the view of ORG that the statements relied on by the plaintiffs to found the action were protected by absolute immunity and the proceedings were rightly struck out on that ground as well .

Lord PERSON considered that the CARDINAL principles in debate were well established and that the question was rather the extent of their reach .

In particular , the first question was whether the public interest in the administration of justice required the implied undertaking ( which had originated in the law of discovery in civil proceedings ) to be applied to documents disclosed by the prosecution to the defence in criminal proceedings . Lord PERSON considered that ORG had erred in PERSON v. PERSON and concluded that the disclosure of documents by the prosecution as unused material under its common law obligations generated an implied undertaking that they would not be used for any collateral purpose . In support of this implied undertaking , he cited the interests ( protection of privacy and confidentiality ) of those giving statements to the police and to other investigatory bodies and of those mentioned in the statements .

Considering the arguments raised that there were other means to protect people who might be adversely affected by the collateral use of disclosed documents , such as the rules of public interest immunity and qualified privilege , he observed that the first was not designed to protect the same interests and could give only accidental protection and that qualified privilege also did not protect the privacy of persons mentioned in the statements and , as stated by PERSON in GPE v. PERSON ( DATE ) CARDINAL QBD CARDINAL , did not protect those involved in court proceedings from the harassment of litigation .

Although it was not therefore strictly necessary to consider the question of the application of an immunity from suit , Lord PERSON went on to consider the matter on the basis that it was necessary to know whether , if the statements had been read out in open court , they could have been relied on thereafter for the purposes of a libel action . The immunity from suit in question was for those taking part in a trial ( judges , advocates and witnesses ) for anything written or spoken during the proceedings . It was absolute and could not be defeated even by proof of malice . The novel question was whether it could be extended to statements made to or by investigators for the purposes of a criminal investigation .

Lord PERSON recalled that the general rule was that the extension of absolute privilege was to be viewed with the “ most jealous suspicion , and resisted , unless its necessity is demonstrated ” . He considered that it had been shown to be necessary for the administration of justice to extend the immunity from suit to those assisting investigators and to investigators themselves , and that the protection would apply to all statements which could be fairly said to be part of the process of investigating a crime or possible crime with a view to prosecution or a possible prosecution . It was , however , limited to actions in which the alleged statement constituted the cause of action ( defamation ) and so would not apply to an action for malicious prosecution .

He stated that the immunity :

“ ... is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say . It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action . ”

He went on to state that the test was a strict CARDINAL and to fall within the immunity it had to be shown that the immunity was “ necessary for the administration of justice ” . It would not therefore cover “ irrelevant and gratuitous libels ” , statements extraneous to the investigation but could not be confined only to out - of - court statements of persons who were subsequently called as witnesses as the person had to know at the time at which he spoke whether or not the immunity attached . The same reasoning and necessity applied to the position of investigators :

“ It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness . In my view it is necessary for the administration of justice that investigators should be able to exchange information , theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings . ”

He noted that the implied undertaking and immunity were related :

“ The implied undertaking prevents , as far as possible , the publication or dissemination of disclosed documents and therefore restricts the extent to which damage can be caused by defamatory statements which they may contain . In this sense , the injustice which may be caused by the fact that such defamatory statements are protected by the immunity is reduced . ”

He observed as to the risk to the applicant from the statements concerned :

“ < he > might have taken some comfort from the fact that the documents which showed that he had been under suspicion could go no further than the files of the ORG and < CARDINAL solicitors . They could not have damaged his reputation in the outside world . Instead , he chose to bring libel proceedings and ( apparently due to the thoughtlessness of his solicitors ) put the statements into the public domain by quoting them in extenso on a specially endorsed writ . ”

Lord Hope similarly commented on the relationship between the CARDINAL principles :

“ I see the CARDINAL solutions [ implied undertaking and immunity ] as complementary to each other . If the absolute privilege and the consequent immunity are to be kept within limits which are necessary for the administration of justice , they must be accompanied by a rule which restricts the use and dissemination of disclosed material . The purpose of the immunity is to ensure the integrity of the investigation process . The disclosure should extend no wider that is necessary to serve the public interest in the administration of justice . It should not be accompanied by risks to the good name of those who are not on trial from whom the protection of defamation proceedings has been removed by the immunity . So a restriction on the release and collateral use of the disclosed material by means of the implied undertaking can be seen as a necessary balance against possible harm which might flow from the absolute nature of the immunity . ”


Violation of Art. 6-1 (length of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

At the time of the events giving rise to the application , the applicant worked as a customs broker in a private company .

On DATE the applicant was questioned by a customs inspector in respect of his involvement in the smuggling of electronic goods .

On DATE the customs inspector submitted his report and on CARDINAL DATE the PERSON public prosecutor filed a petition with ORG accusing the applicant and CARDINAL other suspects of smuggling electronic goods . He requested that the applicant be convicted and sentenced under Articles CARDINAL § § CARDINAL , CARDINAL , DATE and DATE and CARDINAL § CARDINAL of Law no . DATE .

On CARDINAL DATE the criminal proceedings initiated against the applicant and CARDINAL other co - accused commenced before ORG .

On DATE the applicant was remanded in custody . He was released pending trial on DATE .

On an undetermined date , the PERSON public prosecutor submitted an additional indictment against CARDINAL other suspects and the cases were joined .

On DATE ORG declared that it lacked competence ratione materiae to examine the case . The case - file was transferred to ORG .

On DATE , LAW no . CARDINAL on the Establishment and the Rules of Procedure of ORG was amended to exclude organized smuggling offences within the competence of ORG . Accordingly , on DATE ORG declared that it lacked competence ratione materiae to examine the case .

On DATE the criminal proceedings before ORG commenced . The applicant was tried together with CARDINAL other co - accused .

DATE and DATE the first - instance court held CARDINAL hearings on regular intervals . During this period the court undertook various procedural decisions with a view to determining the addresses of the co - accused and obtaining their additional defence submissions by way of rogatory letters .

In a hearing held on DATE the court noted that no reply had been received from the various authorities to its requests for information for the case - file . On DATE the court observed that the documents from the NORP authorities in respect of the coaccused Mr K.Ç. had been translated and submitted to the case - file . It further noted that ORG had not responded to its instruction to hear the co - accused Mr PERSON The court was informed that the public prosecutor ’s office was unable to determine the address of another coaccused Mr E.Ç. The court issued instructions to both ORG and the public prosecutor ’s office with a view to completing the case - file .

On DATE the additional defence submission of PERSON was submitted to the court . The court noted that the public prosecutor ’s office had not responded to its request to determine the address of Mr E.Ç.

On DATE the address of Mr E.Ç. was submitted to the court by the public prosecutor ’s office . It appeared that Mr E.Ç. was a civil servant working in ORG . On CARDINAL DATE the additional defence submission of Mr E.Ç. , taken by ORG , was submitted to the case - file .

On DATE the public prosecutor submitted his observations on the merits . The applicant requested time to submit his final defence submissions .

On DATE the applicant read out his final defence submissions before the court .

On DATE ORG convicted the applicant on account of his involvement in organised smuggling and sentenced him to DATE imprisonment and to a fine of CARDINAL,CARDINAL,CARDINAL,CARDINAL PERSON ( TRL ) .

On DATE ORG held a hearing and upheld the judgment of the firstinstance court . The decision of ORG was sent to the registry of the first - instance court on DATE .

On DATE the applicant was released from prison .

On DATE the principal public prosecutor at ORG dismissed the applicant ’s request for the rectification of ORG decision .