Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

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

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

NORP In DATE , the applicant was convicted of attempted rape which had taken place on DATE . Given his history as a serial sexual offender , he was sentenced to life imprisonment . His DATE tariff expired in DATE and he was released on life licence on DATE .

In DATE , while on day release from that sentence , the applicant purchased a ticket for ORG . He won a sum in the region of GBP CARDINAL .

NORP The news reached the victim of the DATE rape , PERSON had been unable to sue the applicant for damages at the time of the offence because he was impecunious . She had , however , received a sum in the region of GBP CARDINAL,CARDINAL in compensation from ORG .

Upon hearing the news , PERSON proceeded to seek damages against the applicant for trespass to the person .

On DATE , PERSON issued her claim form seeking damages . The applicant sought legal advice from his solicitors and Counsel .

His barrister , a Queen ’s Counsel , warned the applicant that there was a risk of his losing , as in any litigation . Given the well - established case - law on the matter , as explained by his legal representatives , however , the applicant felt that he could rely on the certainty of the law in this area to pursue his defence that PERSON claim was time - barred .

Accordingly , on an unspecified date , the applicant rejected an offer made by PERSON to settle the action for a sum in the region of GBP CARDINAL .

On DATE PERSON action was struck out by PERSON on the ground that it was time - barred pursuant to LAW CARDINAL of LAW DATE ( “ the DATE LAW ) . The general rule , contained in section CARDINAL of LAW , was that the period of limitation for an action in tort was DATE from the date on which the cause of action accrued ( see paragraph CARDINAL below ) . In Mrs A ’s case , the cause of action had arisen DATE before the issue of the claim form and so was time - barred .

On an unspecified date , PERSON was granted leave to appeal .

Before the High Court judge , the argument focused on the question whether PERSON action was one to which LAW applied . LAW of LAW , upon which PERSON sought to rely , covered actions for damages based on negligence , nuisance or breach of duty where the damages were in respect of personal injuries ( see paragraph CARDINAL below ) . The limitation period for such actions was DATE , either from the date on which the cause of action accrued or the date of knowledge of the person injured , as defined in section CARDINAL of the CARDINAL Act . In addition , section CARDINAL of the DATE Act gave the court a discretion to extend that DATE period when it appeared that it would be equitable to do so ( see paragraph CARDINAL below ) . It was the applicant ’s case that section QUANTITY applied and was a bar to Mrs A ’s claim .

On DATE PERSON sitting in ORG dismissed PERSON appeal . He concluded that , following ORG decision in PERSON v PERSON [ DATE ] ORG CARDINAL , PERSON claim was covered by LAW rather than LAW .

NORP In his judgment , PERSON recalled that ORG in PERSON had held that claims for injuries arising from complaints of deliberate assault or trespass to the person , such as PERSON , were subject to the nonextendable DATE limitation period imposed by section CARDINAL . As regards the meaning of the words “ breach of duty ” contained in LAW , he noted that in his speech , Lord PERSON had held that these words were not to be construed as including actions based on intentionally inflicted injuries , such as rape or indecent assault .

PERSON further rejected PERSON contention that her right of access to court contained in LAW had been breached . In particular , he relied on the ORG ’s judgment in PERSON and Others v. GPE , DATE , Reports of Judgments and Decisions DATE , in which a majority had found no violation of LAW ground that the limitation period contained in LAW , as interpreted by ORG , constituted a proportionate restriction on the right of access to court .

Finally , PERSON referred to the comprehensive review of the law of limitation carried out by ORG and laid before ORG in DATE : Limitation of Actions ( Law Com No CARDINAL ) ( see paragraphs CARDINAL - CARDINAL below ) . He noted however that :

“ CARDINAL . ORG Report has not yet been implemented . I have no information as to what the ORG ’s intentions may be . There is a hint in paragraph CARDINAL of ORG judgment in PERSON that , if Member States - that is primarily their legislatures , do not act , ORG would at DATE take a second look at the issue with possibly a different outcome . If that moment arrived for ORG , a national court considering the issue would be in no different position . On this analysis the issue for me is whether that moment has arrived . I do not consider that the passage of DATE since the ORG is so long a period that what was within the ‘ margin of appreciation’ has ceased to be so . ”

Accordingly , PERSON ordered that PERSON A should pay the applicant ’s costs in defending PERSON appeal . PERSON appealed .

In DATE , ORG heard PERSON appeal together with CARDINAL other appeals , namely H v ORG and X and Y v ORG , which both concerned schoolboys who had been sexually abused by their teachers . The common feature of these appeals was that the claim in each case had been brought DATE after the sexual abuse in question ( or , in H and X and Y , after the schoolboys who had been abused had reached DATE ) .

In its judgment of DATE , ORG dismissed all the appeals . ORG began with a detailed review of the background to LAW ; it examined both the respective decisions of ORG and ORG in PERSON as well as subsequent cases . As to ORG report on the law of limitation of DATE , ORG observed that :

“ CARDINAL . ... The remedy has now been in ORG ’s hands for DATE following a comprehensive law reform study conducted at considerable public expense . Although the ORG ’s recommendations would not have affected cases in which the defendant already possessed an accrued limitation defence under existing legislation , justice would be far more simply achieved in claims like this in future if ORG were to simplify the law along the lines the ORG recommended . In the meantime , ORG itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands DATE in a way that we can not . ”

As to the argument that ORG had been wrongly decided by ORG , ORG held that it was bound by that decision of the ORG . ORG noted however that both the cases decided since ORG and the detailed analysis of ORG in its comprehensive DATE report pointed to some very unsatisfactory features of the law as it applied to sexual abuse cases ( at paragraphs CARDINAL - CARDINAL of the judgment ) .

The Court of Appeal further held , after a detailed examination of the relevant authorities , that because the DATE limitation period had expired before LAW ( “ HRA ” ) came into force appellants could not rely on the provisions of that LAW for assistance ( at paragraphs CARDINAL of the judgment ) .

As for the application of the law to PERSON appeal , ORG held , per Sir PERSON :

“ CARDINAL . If ORG enacted the PERSON Commission’Stubbings v PERSON to hold that the claim is statute barred , and for the reasons we have set out in paras CARDINAL to CARDINAL above the ORG can not come to A ’s assistance because the defendant possessed an accrued right to a limitation defence long before the ORG became law . For these reasons we must dismiss A ’s appeal . ”

In the event , ORG ordered that PERSON A should pay the applicant ’s costs of the appeal and that she be allowed to appeal to ORG .

In ORG , PERSON appeal was joined with CARDINAL other appeals which concerned the alleged sexual abuse of children / young persons by members of staff at schools which were managed by the local council . CARDINAL of the appeals , ORG ) and ORG , also involved allegations of sexual abuse by a member of staff in a detention centre operated by ORG . The appeals were heard on CARDINAL , DATE , DATE , and DATE .

The CARDINAL conjoined appeals all raised the question whether claims for sexual assaults and abuse which took place DATE before the commencement of proceedings were barred by LAW . The appeal in PERSON also raised an issue under section CARDINAL of the DATE Act which deals with the date of knowledge and what knowledge may or may not be attributed to a claimant .

In a unanimous judgment which was delivered on DATE , their Lordships concluded that LAW of LAW , which traditionally applied to negligence and breach of duty actions , also applied to actions arising out of intentional torts where personal injuries were sustained . Accordingly , all the appeals were allowed .

Lord PERSON , with whom all the other Law Lords agreed , gave the leading speech , explaining why the ORG should depart from its earlier case - law in PERSON v Webb . After having given a detailed account of the history of LAW , he went on to note that , although ORG had not given rise to too much difficulty at first , the position had radically been changed with ORG decision in PERSON v ORG [ DATE ] CARDINAL AC CARDINAL . In that case , their Lordships had decided that sexual abuse was not necessarily outside the scope of an employment . After that , a considerable number of claims had been brought against the operators of schools , detention centres and the like for sexual abuse by employees . This , in the words of Lord PERSON , “ threw into relief the anomalies created by PERSON ” .

His Lordship referred in particular to the case of LOC v W ( Child Abuse : Damages ) [ DATE ] CARDINAL FLR CARDINAL , a pre - PERSON case , in which the plaintiff had sued her father and mother for sexual abuse by the father . The action had been commenced DATE after the last act of abuse . As the cause of action against the father was intentional assault , the claim had been struck out . The cause of action against the mother was negligent failure to protect the plaintiff against the father . As this fell CARDINAL of the CARDINAL Act and was subject to a discretionary extension under LAW , which had been granted by the judge and affirmed by ORG , the action against the mother had been allowed to proceed . Lord PERSON recorded the court ’s finding , per Sir PERSON at p.CARDINAL , that the result was “ illogical and surprising ” and deserving of the attention of ORG .

Indeed , Lord PERSON went on to note that :

“ CARDINAL . The matter was considered by ORG as part of a comprehensive review of the law of limitation of actions which was presented to ORG in DATE : Limitation of Actions ( DATE ) ( Law Com No CARDINAL ) . The effect of PERSON was described as anomalous , with particular reference to S v W ( Child Abuse : Damages ) [ DATE ] CARDINAL FLR CARDINAL : see para CARDINAL of the ORG . The ORG recommended a uniform regime for personal injuries , whether the claim was made in negligence or trespass to the person : see the summary at para CARDINAL . There has not yet been any implementing legislation , possibly because the ORG ’s recommendations were not confined to the ORG anomaly but proposed a completely new law of limitation of actions . ”

Lord PERSON concluded :

“ CARDINAL . Lord PERSON ’s observation [ DATE ] ORG CARDINAL , ORG that unsatisfactory decisions of the highest court can cause uncertainty because lower courts tend to distinguish them on inadequate grounds is also pertinent to the consequences of ORG . Claimants who have suffered sexual abuse but need to seek the discretion of the court under LAW are driven to alleging that the abuse was the result of , or accompanied by , some other breach of duty which can be brought within the language of LAW . Thus , in addition to having to decide whether the claimant was sexually abused , the courts must decide whether this was the result of ‘ systemic negligence’ on the part of the abuser ’s employer or the negligence of some other person for whom the employer is responsible . In the appeals before the ORG , the appellants put forward CARDINAL alternative theories of liability on which they wish to rely if the rule in PERSON is upheld . These are , in increasing degree of artificiality ( CARDINAL ) breach of a direct duty of care owed by the employer to the claimant ; ( CARDINAL ) breach of a duty of care by other employees ; ( CARDINAL ) breach of a duty of care by the abuser himself and ( CARDINAL ) breach of a duty by the abuser to notify the employer of his own wrongful acts . In ORG v ORG [ DATE ] QB CARDINAL , para CARDINAL ORG said that the need to frame a claim in CARDINAL or other of these ways when the real cause of complaint was sexual abuse for which the employer was vicariously liable was causing ‘ arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.’ I therefore think that it would be right to depart from ORG and reaffirm the law laid down by ORG in PERSON v ORG [ DATE ] CARDINAL QB CARDINAL . ”

Lord PERSON of PERSON - under - Heywood concurred . As regards the exercise of the court ’s discretion under LAW of LAW , he commented that , by no means everyone who brought a late claim for damages for sexual abuse , however genuine , could reasonably expect the court to exercise the section CARDINAL discretion in his favour .

As regards PERSON appeal , he stated :

“ CARDINAL . ( ... ) It would not ordinarily be sensible to sue an indigent defendant . How then should the court approach the exercise of its section CARDINAL discretion in a case like A where suddenly , after DATE , the prospective defendant becomes rich . The ORG is not , of course , itself exercising this discretion . I would , however , suggest that it would be most unfortunate if people felt obliged ( often at public expense ) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement . ( Judgments , although interestbearing for DATE , are enforceable without limit of time . ) ”

ORG judgment effectively meant in the applicant ’s case that the section CARDINAL limitation period of DATE became applicable to the circumstances of his case with the possibility of an extension of that period at the discretion of the court under LAW of LAW . Indeed , their Lordships remitted the case to ORG to consider whether it ought to exercise its discretion under LAW of that LAW . As for the question of costs , their Lordships ordered the parties to lodge written submissions on this issue within DATE .

In a Judgment Order of DATE , ORG awarded PERSON A her costs both before the ORG and ORG , with the ORG costs to be determined by the judge hearing PERSON application on LAW of LAW .

On DATE PERSON , sitting in ORG , exercised his discretion in favour of PERSON and allowed her to sue the applicant in damages .

Among the factors taken into account by the learned judge were the following : ( i ) the nature and seriousness of the underlying tortious wrong ; ( ii ) the fact that one of the consequences of that wrong was the applicant ’s impecuniosity ( because he was unable to earn money by which he could otherwise have met a judgment for damages ) ; ( iii ) the fact that , prior to his lottery win , the applicant was simply not worth pursuing in an action for damages – this being the principal reason for PERSON delay ; and ( iv ) the fact that Mrs A acted promptly following the defendant ’s release from prison and his lottery win .

NORP In response to the applicant ’s argument that , if he exercised his discretion in favour of PERSON in the present case , there would be a risk that parties in all aspects of civil litigation would seek to get round the applicable limitation periods by relying on the defendant ’s impecuniosity , PERSON added that :

“ CARDINAL . ... I consider this to be a wholly exceptional case . It will be very rare for a claimant to bring a claim against a defendant for a tortious wrong , in circumstances where that wrong was so serious that it caused the defendant to be sentenced to life imprisonment ( thereby creating the impecuniosity which prevented the claimant from bringing proceedings against him in the first place ) or brought with it in some other way a financial catastrophe for the defendant which meant that he would not be in a position to meet any judgment against him . It will be even rarer for such a defendant , DATE , to buy a lottery ticket , which wins him £ MONEY , or otherwise comes into an unexpected fortune , which makes him suddenly worth pursuing after all . Thus , even if it was appropriate to conclude that section CARDINAL was only applicable in exceptional cases , I am in no doubt that this is indeed such a case . ”

In the event , the applicant was ordered to pay the costs of all the proceedings before the lower courts in addition to the costs before ORG and ORG . In total , in addition to his own costs of ORG the applicant was ordered to pay ORG in legal costs and ORG in compensation to PERSON

The background to the adoption of LAW is set out in detail in the ORG ’s judgment in ORG and Others v. GPE , DATE , § § DATE , Reports of Judgments and Decisions DATE .

Section CARDINAL of the LAW DATE provides as follows :

“ An action founded on tort shall not be brought after the expiration of DATE from the date on which the cause of action accrued . ”

Section CARDINAL of the LAW DATE deals with special time limits for actions in respect of personal injuries and , in its relevant parts , reads as follows :

“ CARDINAL ( CARDINAL ) This section applies to any action for damages for negligence , nuisance or breach of duty ( whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision ) where the damages claimed by the plaintiff for the negligence , nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person . ...

( CARDINAL ) None of the time limits given in the preceding provisions of this LAW shall apply to an action to which this section applies .

( CARDINAL ) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( CARDINAL ) or ( CARDINAL ) below .

( CARDINAL ) Except where subsection ( CARDINAL ) below applies , the period applicable is DATE from—

( a ) the date on which the cause of action accrued ; or

( b ) the date of knowledge ( if later ) of the person injured ...

Section CARDINAL of the LAW DATE further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms :

“ ( CARDINAL ) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

( a ) the provisions of LAW or CARDINAL of this Act prejudice the plaintiff or any person whom he represents ; and

( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ;

the court may direct that those provisions shall not apply to the action , or shall not apply to any specified cause of action to which the action relates .

( a ) the length of , and the reasons for , the delay on the part of the plaintiff ;

( b ) the extent to which , having regard to the delay , the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by LAW or ( as the case may be ) by CARDINAL ;

( c ) the conduct of the defendant after the cause of action arose , including the extent ( if any ) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff ’s cause of action against the defendant ;

( d ) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action ;

( e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant , to which the injury was attributable , might be capable at that time of giving rise to an action for damages ;

( f ) the steps , if any , taken by the plaintiff to obtain medical , legal or other expert advice and the nature of any such advice he may have received .

( CARDINAL ) In a case where the person injured died when , because of LAW , he could no longer maintain an action and recover damages in respect of the injury , the court shall have regard in particular to the length of , and the reasons for , the delay on the part of the deceased .

( CARDINAL ) In a case under subsection ( CARDINAL ) above , or any other case where the time limit , or CARDINAL of the time limits , depends on the date of knowledge of a person other than the plaintiff , subsection ( CARDINAL ) above shall have effect with appropriate modifications , and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit .

( CARDINAL ) A direction by the court disapplying the provisions of section CARDINAL ) shall operate to disapply the provisions to the same effect in section CARDINAL ) of LAW CARDINAL ... ”

In its report , LAW ( DATE ) ( Law Com No CARDINAL ) , ORG carried out a comprehensive review of the law of limitation . As regards sexual abuse cases , the Commission identified the following problems :

“ CARDINAL.CARDINAL Traditionally , the limitation period has started from DATE the cause of action accrued , whether or not the claimant knows of the potential claim . This caused injustice where the injury suffered by the claimant did not become apparent for DATE . Provision has been made for such cases of latent damage in actions for personal injuries , under LAW DATE and in some other cases . However , the provision for latent damage does not extend to most causes of action . Outside the areas of personal injuries and consumer protection , the limitation period will only run from the date the claimant knows the relevant facts if the claim is brought in negligence . Even where the claim is for personal injuries , provision for latent damage does not extend to deliberately caused injuries . Here the limitation period remains DATE , running from the date of accrual of the cause of action . This has led to the anomalous result that a claimant who has been sexually abused by her father may have longer to bring a claim for damages against her mother for negligently failing to prevent the abuse than to bring a claim against her father for actually committing the abuse .

CARDINAL.CARDINAL It is necessary to balance the interests of the claimant ( who wishes to have as long as possible to bring a claim ) and the defendant ( who must be protected from stale claims ) in setting a limitation period . It will never be possible to achieve complete fairness between the parties ( indeed the imposition of any limitation period could be regarded as doing ‘ rough justice’ to the claimant ) . However the balance struck under the present law does not give sufficient recognition to the interests of the claimant ... ”

ORG thus recommended the following :

“ CARDINAL.CARDINAL The core regime will be modified in its application to claims in respect of personal injuries . The court should have a discretion to disapply the primary limitation period , and no long - stop limitation period will apply ...

All personal injury claims will be subject to this regime , whether the claim concerned is made in negligence or trespass to the person ( including claims in respect of personal injury ) . ”

In the Practice Statement ( Judicial Precedent ) DATE CARDINAL W.L.R. DATE , Lord PERSON declared :

“ Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases . It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs , as well as a basis for orderly development of legal rules .

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law . They propose , therefore , to modify their present practice and , while treating former decisions of this ORG as normally binding , to depart from a previous decision when it appears right to do so .

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts , settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law .

This announcement is not intended to affect the use of precedent elsewhere than in this ORG . ”

The relevant rules on costs read as follows :

“ ( CARDINAL ) The court has discretion as to –

( a ) whether costs are payable by CARDINAL party to another ;

( b ) the amount of those costs ; and

( c ) when they are to be paid .

( CARDINAL ) If the court decides to make an order about costs –

( a ) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ; but

( b ) the court may make a different order .

( CARDINAL ) In deciding what order ( if any ) to make about costs , the court must have regard to all the circumstances , including –

( a ) the conduct of all the parties ;

( b ) whether a party has succeeded on part of his case , even if he has not been wholly successful ; and

( c ) any payment into court or admissible offer to settle made by a party which is drawn to the court ’s attention , and which is not an offer to which costs consequences under Part CARDINAL apply .

( CARDINAL ) The conduct of the parties includes –

( a ) conduct before , as well as during , the proceedings and in particular the extent to which the parties followed LAW ) or any relevant pre - action protocol ;

( b ) whether it was reasonable for a party to raise , pursue or contest a particular allegation or issue ;

( c ) the manner in which a party has pursued or defended his case or a particular allegation or issue ; and

( d ) whether a claimant who has succeeded in his claim , in whole or in part , exaggerated his claim .

( CARDINAL ) The orders which the court may make under this rule include an order that a party must pay –

( a ) a proportion of another party ’s costs ;

( b ) a stated amount in respect of another party ’s costs ;

( c ) costs from or until a certain date only ;

( d ) costs incurred before proceedings have begun ;

( e ) costs relating to particular steps taken in the proceedings ;

( f ) costs relating only to a distinct part of the proceedings ; and

( g ) interest on costs from or until a certain date , including a date before judgment . ”


Violation of Art. 8;Remainder inadmissible;Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and , at the time of lodging his application with the ORG , was serving a sentence of imprisonment in ORG ORG , GPE .

NORP In DATE , in response to an increase in the availability of heroin in GPE , the police commenced “ FAC ” , to identify and target those responsible . On the basis of intelligence reports the police reached the conclusion that the applicant was the head of a group of NORP drug traffickers operating in the area . Video recordings made of his house and his itemised telephone bill indicated that he was in regular contact with suspected drug dealers from elsewhere in GPE .

On DATE , in accordance with ORG ( “ the LAW : see paragraphs CARDINAL of the PERSON judgment , cited in paragraph CARDINAL below ) the Chief Constable authorised the use of a covert listening device in the applicant ’s house . On DATE the applicant was arrested for suspected car theft and a warrant was obtained to search his house for documents relating to motor vehicles . When executing the warrant the police covertly installed listening and recording equipment inside his house . Recordings were made between DATE and DATE . The Chief Constable ’s authorisation had been obtained for the entire period , except DATE and DATE , when the authorisation had lapsed and not been renewed , due to an oversight .

It was the prosecution ’s case at the subsequent trial that the recordings obtained in this way revealed detailed discussions between the applicant and his co - accused demonstrating their involvement in conspiracies to import and distribute Class A drugs , in particular heroin .

The applicant was arrested , together with a number of alleged associates , and charged with conspiracy to import and supply Class A drugs . He and his co - accused applied to have the prosecution struck out for abuse of process and/or the recordings excluded from evidence . On DATE the trial judge ruled against the defendants , observing as follows :

“ I respectfully note the conclusion of ORG rights in the case of PERSON v. the GPE , adopted DATE , to the effect that the use of covert listening devices in accordance with the Guidelines is not done in accordance with the law and is thus in breach of LAW , because in GPE there is as yet no legally binding publicly accessible body of law regulating such activity . I bear in mind that the Convention is not yet part of our law , but that where possible domestic law should be interpreted in accordance with Convention principles .

I take into account that in intruding on the privacy of ORG ’s home the police will have committed civil trespass and possibly criminal damage . I take into account that there may have been conduct outside FAC , in that the authority for the continued use of the listening device may not have been in place DATE and DATE . On the other hand , I bear in mind my finding that the police followed the LAW to the letter in all other respects and did not intend deliberately to circumvent the requirement to obtain the Chief Constable ’s authority . I take into account that the police acted in good faith throughout in pursuit of the public good in the detection and prosecution of very serious crime . Balancing these factors , I ’m satisfied that there is no evidence of abuse of power by the police which could found the basis for a stay of the proceedings as being an abuse of process . ...

I turn next to consider the court ’s exclusionary power under s. CARDINAL of ORG . ... Being in tape recorded form there ’s unlikely to be dispute about [ the evidence ’s ] authenticity . It is highly relevant and potentially probative of the defendants’ involvement in the conspiracies alleged . It did not result from incitement , entrapment or inducements , or other conduct of that sort . The fact that the defendants may not have said what they did if they PERSON known the police were listening in does not mean that reception of evidence of what they said is unfair . The potential branches of the civil or criminal law and LAW and the possible lack of the Chief Constable ’s authority between certain dates do not affect the quality of the evidence ... ”

Following this ruling , the applicant absconded . He was convicted in his absence on DATE , and sentenced to CARDINAL years’ imprisonment .

It appears that the applicant was arrested DATE , at which point he appealed against conviction , arguing that the covertly obtained recordings should not have been used at trial and that he had made the damaging recorded statements only because he had been entrapped into so doing by participating informants . His renewed application was rejected by the full ORG on DATE , on the grounds that the trial judge ’s ruling of DATE was irreproachable and that there was no evidence of entrapment or any other abusive action on the part of the police .


CASE OF VIJAYANATHAN AND PUSPARAJAH v. FRANCE

The first applicant , Mr PERSON , is a GPE citizen of GPE ethnic origin . He left GPE on DATE and entered GPE clandestinely in DATE , using a false passport . On DATE he submitted to ORG français de protection des réfugiés et apatrides , " OFPRA " ) a request for recognition of his refugee status . In accordance with a circular of CARDINAL DATE concerning asylum seekers , he obtained provisional leave to reside in GPE " with a view to dealings with the OFPRA " , and this was renewed on several occasions .

On DATE the director of the OFPRA refused the request , on the grounds that Mr PERSON ’s statements were " vague in places " and not " such as to establish the truth of the facts alleged or prove that his personal fears of persecution were well - founded for the purposes of LAW " of DATE relating to ORG ( " LAW " ) .

On DATE Mr PERSON appealed against this decision to ORG des recours des réfugiés , " ORG " ) , which on DATE dismissed the appeal for the following reasons :

" ... By virtue of paragraph A , sub - paragraph CARDINAL , of LAW of DATE and the LAW signed in GPE on DATE , a refugee is considered to be any person who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , unwilling to avail himself of the protection of that country ;

... In order to claim the benefit of the above provisions , Mr GPE , who is of GPE nationality , maintains that because of his NORP origin he defended the cause of his people and was arrested on DATE for distributing leaflets ; that DATE he was searched for CARDINAL times and arrested twice , following attacks on GPE and NORP military camps ; that because he had taken part in the election campaign of a candidate of the EROS movement [ ORG ] , he was arrested on CARDINAL DATE by NORP troops ; that following another attack on CARDINAL members of the ORG [ ORG ] he was under suspicion and decided to leave GPE ; that he fears for his safety and liberty if he has to return to his country ;

... However , the documents in the case - file do not make it possible to regard the facts alleged as having been proved or the fears expressed as being well - founded . The appeal can thus not be upheld . "

On DATE the prefecture of FAC directed the first applicant to leave NORP territory within DATE , and informed him that if he failed to comply he would be liable to expulsion ( reconduite à la frontière ) or a prison sentence and fine .

Mr GPE immediately applied to ORG .

He has been unlawfully resident in GPE since DATE . He claimed that if returned to GPE he would run the risk of treatment which was not compatible with LAW ) of the LAW . In support of this claim he produced a number of certificates , which are in the ORG ’s file of the case .

The second applicant , Mr Nagalingam Pusparajah , who is also a GPE of GPE origin , entered GPE clandestinely in DATE . On DATE he submitted a request for recognition of refugee status to the OFPRA . His request was rejected on CARDINAL DATE for the following reasons :

" Mr Pusparajah has not adduced even prima facie evidence that his personal case is one of those covered by LAW , paragraph A , sub - paragraph CARDINAL , of LAW .

The applicant maintains that he was a leading member of the NORP movement ; that during a search for him carried out by the NORP army his father was killed in his place ; and that he was eventually found and arrested on DATE when on his way to visit his sick mother . On being released DATE , he decided to leave the country . However , his declarations do not provide proof of the facts alleged . "

He appealed to ORG on DATE . His appeal was dismissed on DATE , on the grounds that :

" ... ORG , who is a GPE national of GPE origin , maintains that his family is being persecuted in his country and that he himself , a militant member of the ORG , saw his home bombed in DATE and searched in DATE ; and that he can not return without danger to his country , where he was imprisoned for DATE in DATE , on account of his militant activities ;

... However , neither the documents in the case - file nor the statements made at the public hearing before the ORG make it possible to regard the facts alleged as established or the fears expressed as well - founded ; and , in particular , the documents produced and submitted such as a medical certificate issued in GPE on DATE and the statement by a priest dated CARDINAL DATE are not sufficient in this respect ... "

In a letter of CARDINAL DATE to the director of the OFPRA the second applicant requested that his case be re- examined . He stated that he had arrived in GPE in DATE , that his younger brother had lost his life on CARDINAL DATE in fighting between the ORG and the NORP army , and that his mother had been seriously injured .

On DATE , the GPE Commissioner of Police ( préfet de police ) directed him to leave NORP territory before DATE , failing which an order for his expulsion could be issued .

Mr Pusparajah did not comply .

His case was re - examined , however , in the context of an application for exceptional leave to remain submitted in DATE . On DATE the Commissioner of Police dismissed that application on the grounds that Mr Pusparajah ’s lawful stay had been of very short duration and that he had not shown that he had had stable employment since entering GPE or that he had sufficient family ties . He again directed him to leave NORP territory before DATE , on pain of the penalties provided for in section CARDINAL of Order no . CARDINAL of DATE as amended ( see paragraph CARDINAL below ) .

Mr Pusparajah claimed that if returned to GPE he would be exposed to treatment which was not compatible with LAW ) of the LAW . In support of this claim he produced a number of certificates , which are in the ORG ’s file of the case .

In GPE , recognition of refugee status as defined by LAW and attribution of such status are the exclusive responsibility of the ORG and ORG , which were set up by PERSON no . CARDINAL of DATE .

According to a circular from the Prime Minister , dated CARDINAL DATE and relating to asylum seekers , the provisional admission to GPE of aliens who are seeking asylum requires the issue of CARDINAL documents in turn : a provisional residence authorisation " with a view to dealings with the OFPRA . " , valid for DATE , and a receipt bearing the words " Has requested asylum " , issued for DATE and renewable , and equivalent to a provisional residence and work permit .

If the OFPRA refuses to grant refugee status , it notifies the person concerned of its decision and sends a copy to the relevant prefecture . The decision is regarded as definitive if the alien does not appeal to ORG within DATE from DATE when he actually received notification ( ministerial circular of CARDINAL DATE ) .

ORG is presided over by a judge from the ORG d’État and consists of a representative of the ORG ’s board of management and the NORP delegate of ORG High Commissioner for Refugees ( " the ORG " ) .

A refusal by the ORG can be appealed against to the ORG d’État . The appeal has no suspensive effect , in that it does not provide grounds for extension of the provisional residence documents ( PERSON judgment of CARDINAL DATE , unreported ) . Requests to the OFPRA to re - examine the case and appeals against the rejection of such requests are likewise no grounds for the issue or extension of the receipt marked " Has requested asylum " ( circular of CARDINAL DATE ) .

Where a request for recognition of refugee status has been definitively rejected , the circular of CARDINAL DATE requires prefects of departments and the GPE Commissioner of Police , when the person concerned attends at the prefecture , to communicate to him a direction to leave NORP territory within DATE , on pain of court proceedings . After DATE he must report to the proper authorities and inform them of the arrangements he has made for organising his departure ; the time - limit can be extended if the alien puts forward valid reasons and shows that he has made real preparations for departure , in particular a definite date for departure . On expiry of the last provisional residence authorisation , the relevant authorities must refer to the public prosecutor the offence defined in section QUANTITY of the Order of DATE as amended ( see paragraph CARDINAL below ) .

If , however , it appears that there are particular circumstances which would expose the person concerned to serious risks if he returned to his country of origin , the authorities must immediately refer the case for a decision to the Minister of the ORG , by sending him a telegram giving precise details of the person concerned and the facts alleged .

In this respect a circular of CARDINAL DATE of the Minister of the ORG restates the obligation to refer the matter to the central authorities in cases where there is an objection to repatriation based on the situation in the country of origin and the alien fears that he will be exposed there to serious risks to his safety or liberty . The decision is taken as soon as information has been received from the NORP delegation of the ORG . The person concerned is then granted a provisional residence authorisation , valid for DATE and renewable , during which period he must be requested to find a third country which might be prepared to receive him . If there is a risk of flight , the authorities can ask the Minister of the ORG to issue a compulsory residence order ( LAW of the Order of DATE ) .

A direction to leave NORP territory is not served on the alien if he submits or manifests the intention of submitting a request for exceptional admission on the grounds of risks to his safety in the event of his return to his country of origin . In such cases the prefect takes the decision . If no such request is made , the alien is informed of the possibility of submitting written observations on his possible expulsion ( in accordance with section CARDINAL of the Decree of DATE on relations between the authorities and persons dealing with them ) , and of the possibility of appealing for the case to be reconsidered , appealing to a higher authority or appealing to the court within DATE from service of the direction . However , such an appeal does not have suspensive effect and , on expiry of the period granted to him to prepare his departure , the person concerned becomes liable to an administrative measure of expulsion or a fine and imprisonment for unlawful residence ( sections CARDINAL of the Order of DATE and circular of CARDINAL DATE of the Minister of the ORG ) .

The Order of DATE relating to the conditions of entry and residence of aliens in GPE , as amended by PERSON no . CARDINAL - CARDINAL of CARDINAL September CARDINAL , Law no . CARDINAL - CARDINAL of DATE and PERSON no . CARDINAL of DATE , provides that :

" An alien who enters or resides in GPE without complying with the provisions of sections CARDINAL and CARDINAL shall be punished by imprisonment for DATE but not DATE and a fine of CARDINAL but not MONEY .

The court may also prohibit the person convicted from entering or residing on NORP territory for a period not exceeding three years . The prohibition automatically entails the expulsion of the convicted person , where appropriate after his prison sentence has been served . "

" The ORG ’s representative in a department , or in GPE the Commissioner of Police , may issue a reasoned decision ordering an alien ’s expulsion in the following cases :

If the alien can not prove that he entered NORP territory lawfully , unless his position has been regularised subsequent to his entry ;

If the alien has remained on NORP territory on expiry of a period of DATE from his entry into GPE without holding a lawfully issued first residence permit ;

If an alien who has been refused issue or renewal of a temporary residence permit has remained on NORP territory for DATE from the date of notification of the refusal ;

If the alien has been convicted by a final judgment of counterfeiting , forgery , residence under an assumed name or non - possession of residence permit . Once the alien has been served with the expulsion order , he shall immediately be permitted to inform a lawyer , his consulate or a person of his choice . "

" An order for the deportation of an alien shall be automatically enforceable by the authorities . The same applies to an expulsion order which has not been challenged before the president of the administrative court or his deputy within the period laid down in LAW bis of the present Order or which has not been set aside at first instance or on appeal under the conditions laid down in that section . "

" An alien subject to a deportation order or who is to be expelled , who shows that he is unable to leave NORP territory by proving that he can neither return to his country of origin nor enter any other country , may by derogation from section CARDINAL bis be compelled by an order of the Minister of the Interior to reside in a specified place where he must report periodically to the police or gendarmerie . "

" An alien who is to be expelled and is unable to leave NORP territory immediately may be detained , if this is absolutely necessary , in LOC other than penal institutions by a reasoned written decision of a prefect for the time strictly necessary to arrange his departure .

The public prosecutor shall be informed of this immediately .

The alien shall immediately be informed of his rights through an interpreter if he does not understand NORP .

On expiry of a period of TIME from the detention decision , the case shall be referred to the president of the tribunal de grande instance or a judge designated by him , who shall then give a ruling by means of an order , after hearing the person concerned in the presence of his legal representative , if any , or after having duly informed the said legal representative , on CARDINAL or more of the surveillance and supervision measures necessary to ensure his departure listed below :

Surrender to the police or gendarmerie of all identity documents , in particular his passport , in exchange for a receipt serving as proof of identity ;

A compulsory residence order ;

In exceptional cases , extension of detention in the LOC mentioned in the first sub - paragraph of this section .

The order extending detention shall run from expiry of the period of TIME laid down in this sub - paragraph .

Application of these measures shall end not later than the expiry of a period of DATE from the issue of the order mentioned above . "

These various provisions have not been applied , or at least have not yet been applied , in the cases of Mr GPE and Mr Pusparajah .

The circular of the Minister of the ORG dated DATE requires the police to serve the prefectoral expulsion order on the person concerned .

An order which it has not been possible to enforce is recorded in the list of wanted persons .

Neither the model forms for service of such orders , annexed to the various circulars , nor the circulars themselves require the alien to be notified of the country of destination when he is served with the expulsion order .

Section CARDINAL bis of the Order of DATE ( as amended by PERSON no . CARDINAL of DATE ) provides that :

" An alien who is the subject of a prefectoral expulsion order may within TIME from service thereof apply to the president of the administrative court for the order to be set aside .

The president or his deputy shall take a decision within a period of TIME from such application . He may proceed to the seat of the ordinary court nearest to the place of detention of an alien who is being detained pursuant to section QUANTITY bis of this Order .

I. The alien may ask the president of the court or his deputy for the assistance of an interpreter and to be shown the case - file containing the documents on the basis of which the challenged decision has been taken .

The hearing shall be in public . It shall take place without submissions from the Government Commissioner ( commissaire du Gouvernement ) and in the presence of the alien , unless the latter has been duly summoned and fails to attend . The alien shall be assisted by his legal representative if he has one . He may ask the president or his deputy for counsel to be appointed for him .

II . The provisions of LAW bis of this Order may be applied as soon as the expulsion order has been issued .

That order may not be enforced until the expiry of a period of TIME from its service or , if the case has been referred to the president of the administrative court or his deputy , until he has taken his decision .

III . If the expulsion order is set aside , the surveillance measures provided for in LAW bis shall be discontinued immediately and the alien shall be issued with a provisional residence authorisation until the prefect has taken a fresh decision on the matter . "

Proceedings in respect of prefectoral expulsion orders are governed by Decree no . CARDINAL of DATE inserting additional provisions after PERSON , and providing inter alia :

" The following provisions only shall apply to the submission , investigation and adjudication of applications for the setting aside of prefectoral orders for the expulsion of foreign nationals . "

" Decisions on applications brought against prefectoral orders for the expulsion of aliens shall be taken by the president of the administrative court or a judge appointed by him , without submissions from the Government Commissioner . "

" The administrative court with territorial jurisdiction shall be the court in whose district is the office of the prefect who has issued the expulsion order . "

" The application must include the name and address of the applicant and a statement of the facts and the grounds on which setting aside is requested . It shall be presented in a single copy . "

" The applications mentioned in LAW may be submitted without representation by counsel .

Once his application has been lodged , the alien may request counsel to be appointed for him ; the president of the administrative court shall immediately give notice thereof to the president of the bar association for the tribunal de grande instance within whose district the hearing is to be held . The president of the bar association shall make the appointment without delay . "

" The application must be registered with the registry of the administrative court within TIME from service of the prefectoral expulsion order .

However , if at the time of service of the order the alien is being detained by the administrative authorities , his application may be validly lodged , within the same TIME period , either with the said administrative authorities or with the registry of the court before which he appears for the extension of his administrative detention . "

" The period of TIME within which the president of the administrative court or his deputy must take a decision shall run from the time when the application is registered with the registry of the court . "

" If an alien who does not speak NORP sufficiently well so requests , the president shall appoint an interpreter ... . Such a request may be made as soon as the application to the court is lodged . "

" The parties may submit pleadings or written observations up to the moment when the case is called . "

" After the report presented by the president of the administrative court or his deputy , the parties may submit oral observations in person or through counsel . They may also produce documents in support of their pleadings . If these documents provide new evidence , the judge shall ask the other party to examine them and submit his observations thereon to him at the hearing . "

" The decision shall be pronounced at the hearing . "

" The operative provisions of the decision , together with the enforcement formula provided for in Article ORG , shall be served there and then on the parties present at the hearing , who shall immediately acknowledge receipt thereof .

If it has not been served there and then , the decision shall be served without delay and by any means on the parties , who shall acknowledge receipt thereof . Service shall include notification of the possibility of appealing and the time - limit within which an appeal can be brought . "

" The prefect who signed the challenged order and the alien may appeal against the decision to the president of ORG of the ORG d’État or a judge of the PERSON d’État appointed by him . "

" The period for appealing shall be DATE . It shall run against any party to the proceedings from the date on which service was made on that party under the conditions laid down in FAC , second sub- paragraph . "

It should be noted that an appeal to the ORG d’État has no suspensive effect , but the appellant may request the president of ORG to order a stay of execution of the order ( ORG d’État , ORG judgment of CARDINAL DATE , PERSON DATE , p. CARDINAL ) . Such a request becomes devoid of purpose , however , if the order has been enforced before the ORG d’État gives judgment ( PERSON d’État , PERSON judgment of CARDINAL DATE , PERSON DATE , p. CARDINAL ) .

The ministerial circulars of DATE and DATE state that service of a prefectoral expulsion order shall mention the possibility of bringing the appeal provided for in LAW bis of the Order of DATE and the rights which appellants have in the context of such proceedings . Forms of service have been drawn up in several languages , in order to put aliens in a position to exercise their rights effectively .

Finally , in its GPE judgment of CARDINAL DATE ( PERSON DATE , p. CARDINAL ) , the ORG d’État distinguished between the decision to remove an alien from NORP territory and the decision as to his country of destination :

" ... The argument based on the fact that Mr GPE would be seriously at risk if he had to return to GPE can not be validly relied on in support of an appeal against the impugned [ expulsion ] order which does not specify the country to which the appellant is to be expelled ;

... In a separate decision , served on Mr GPE at the same time as that ordering his detention , the Commissioner of Police decided that the country to which he was to be expelled would be GPE ; ... having regard to the arguments in his application , the appellant must be regarded as having also made submissions for the setting aside of that decision , which was separate from the expulsion order ; ... the judgment appealed against must be quashed for failure to reply to those submissions , and this aspect of the case must be examined ;

... Although Mr GPE , in asking for that decision to be set aside , maintains without giving any further details that his return to GPE would place him at serious risk because of his religious beliefs , he has not shown any particular circumstance such as to constitute a legal impediment to his expulsion to his country of origin ; ... he is therefore unable to maintain that the decision contained in the record of service of DATE was ultra vires and invalid ; "

A ministerial circular of CARDINAL DATE , specifically intended to take into account the recent case - law of the ORG d’État and ORG and to ensure compliance with Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) of the Convention , strengthened the system for the protection of aliens who were the subject of measures of removal from NORP territory . Its aim was to improve both the supply of information to them before such measures were taken and also the relevant administrative procedures .

A direction to leave NORP territory , served on an alien after the right of residence has been refused or after his request for granting of refugee status has been definitively rejected , must now inform him that he may leave voluntarily for the country of his choice ; if he does not do so , the expulsion measure will normally be enforced by sending him to the country of which he is a national or which has issued him with a currently valid travel document , or to any other country to which he proves that he may lawfully be admitted . In addition , prefects must notify the alien that he has the possibility of submitting , within DATE from service , written observations with reference to the risks he would be exposed to if he were to return to his country of origin .

The circular states that the choice of country of destination is a decision which is distinct from the expulsion , and must in no way affect the lawfulness of the expulsion order . It provides that a note of it must be indicated on the record of the order . Such a decision can be the subject of an appeal , made parallel to the application for the order to be set aside ; it will be examined under the same conditions and within the same time - limits , and with the benefit of the safeguards which follow from the suspensive nature of the proceedings .

If the administrative court finds that the order is lawful but annuls the decision as to the country of destination , the prefect must immediately refer the matter to the Minister of the ORG , so that the minister can make a compulsory residence order against the person concerned for DATE , generally not renewable , under LAW of the Order of DATE ( see paragraph CARDINAL above ) , in order to give him an opportunity of finding a third country which will admit him .

A circular of the Minister of ORG and the Minister of the ORG dated DATE lays down the conditions for examination of applications for exceptional leave to remain submitted by unsuccessful asylum seekers , including NORP of GPE origin . It instructs prefects to invite the alien to submit to them in writing , in LANGUAGE , the arguments put forward by him alleging that his safety or liberty would be at risk if he returned to his country of origin . These arguments must be precise , detailed and different from those put forward before the OFPRA or ORG , so as to allow the OFPRA to re - examine the case . Finally , if the alien shows that in the event of return he would risk being subjected to punishment or treatment contrary to LAW , or if the arguments adduced appear to be serious and to deserve detailed consideration by the central authorities , prefects are to send the Minister of the Interior a highly detailed report on the person in question and the arguments relied on .

The Minister of the ORG then examines the case in conjunction with the Minister of ORG ( who may in some cases consult the NORP diplomatic representatives in the country of origin ) and , if appropriate , the ORG delegate for GPE . As stated in the circular of CARDINAL DATE , the reason militating against the return to his country of origin of an asylum seeker whose request has been dismissed may be connected with the general situation in that country - armed conflict , civil war , or state of emergency , bringing about the suspension of air links , etc .

In such circumstances , measures of removal to the country in question may be provisionally suspended .

According to information provided by the ORG , the ORG examines the cases of asylum seekers from GPE on the basis of a number of criteria :

- geographical origin of the asylum seeker , which makes it possible to determine the seriousness of the alleged fears , according to the movement over time of the scene of fighting ;

- political commitment of the person concerned , placing him in opposition to those currently in power ;

- membership of certain categories , making the authorities suspicious of the asylum seeker .

In addition , the OFPRA works together with ORG and ORG in order to assess whether persons in fear of persecution because of rivalries between NORP separatist groups run a real risk from the point of view of LAW ) of the LAW . This assessment takes place on the basis of information received not only from ORG representatives ( ORG in GPE ) but also from outside sources ( publications , the media , expert reports , analyses , etc . ) . The ORG is also in contact with non - governmental organisations ( Médecins sans frontières ) who are present on the ground and in appropriate cases supply invaluable details and testimony on the development of the local situation . To this may be added the experience built up by the NORP authorities responsible for processing requests for asylum .

According to the ORG , the ORG and ORG took CARDINAL final decisions in DATE on requests for asylum by GPE nationals , CARDINAL of whom were granted refugee status . The applicants disputed this before the Commission .

The Government also pointed out that an expulsion order could not be made against such an asylum seeker unless the central authorities had first been consulted .

In DATE CARDINAL of the CARDINAL NORP whose requests for asylum had been unsuccessful had such orders issued against them . Moreover , PERCENT of persons whose situation had been regularised within DATE to DATE in the GPE region were NORP .

The applicants for their part produced a copy of a decision of ORG of DATE , dismissing an appeal which had been brought both against an expulsion order and against the prefect ’s decision to return the appellant to his country of origin . The court found that :

" ... neither the content of the case - file nor the evidence adduced at the hearing is such as to show that the decision to repatriate Mr PERSON to GPE , his country of origin , would contravene the provisions of LAW ) of ORG CARDINAL and CARDINAL of LAW of DATE ; further , the argument based on a violation of LAW is inadmissible , for want of sufficient information to assess the scope of that argument . "


WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGES. M.B.H. v. AUSTRIA (No. 2)

The applicant company , “ Wirtschafts - Trend ” ORG , is the owner and publisher of the DATE news magazine ORG with its seat in GPE . It is represented before the ORG by ORG , lawyers practising in NORP / GPE .

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

On DATE the news magazine ORG published an article with excerpts of TIME of preliminary investigations in criminal proceedings against CARDINAL GPE police officers , who had , on DATE , accompanied a deportation flight on which the deportee had died under unclear circumstances . The incident , which received high press coverage in GPE , evoked a public debate on deportation practices , in particular as regards the use of handcuffs and adhesive tapes for breaking the resistance of the deportee . Under the heading “ Lethal trick ” ( “ PERSON Trick ” ) the article at issue dealt with extracts of conflicting statements the NORP police officers had made on the incident and their conduct during the deportation flight , in particular at FAC in GPE , ORG ) and ORG ( PERSON ) . The article finished with the quotation of CARDINAL of the officers who stated that “ we were surprised and assumed at first that it was a trick ” that , after his handcuffs had been opened and the adhesive tapes , which had been place over his mouth and nose , had been taken away upon the landing , the deportee did not react to their request to follow them . “ TIME a NORP doctor confirmed the death of the NORP deportee . ” While throughout the article the police officers concerned were referred to with their first name and the initial of their last name , PERSON job title and his full last name were disclosed in an eye - catching position directly above the headline .

On DATE Mr PERSON filed a compensation claim under section CARDINAL § CARDINAL of the NORP LAW ( Mediengesetz ) against the applicant company .

On DATE the ORG ( PERSON ) dismissed the claim on the ground that PERSON had failed to substantiate which legitimate interests had been violated in his case .

On DATE ORG ( Oberlandesgericht ) , granting PERSON appeal , quashed the lower court ’s decision and referred the case back to it to establish whether or not any legitimate interests of PERSON had been injured through the disclosure of his identity .

On DATE ORG , after having held a hearing , ordered the applicant company to pay ORG CARDINAL ( ORG CARDINAL,CARDINAL ) in compensation to Mr PERSON The court noted that at the time of the publication of the article , criminal investigation proceedings and disciplinary proceedings were pending against PERSON and that he was suspended from office . Since the disclosure of PERSON K. ’s full name , he suffered social exclusion in his village and was exposed to debates with relatives and within his circle of acquaintances concerning the incident . As a consequence of the article , his quality of life had changed to the detriment . Therefore , the disclosure of Mr K. ’s full name violated his legitimate private interests , which prevailed over the public interest in the publication of such details , pursuant to section ORG § CARDINAL of LAW .

In its appeal of CARDINAL DATE the applicant company complained that ORG balancing of interests was not in line with this ORG ’s case law under LAW , as there was no “ pressing social need ” to impose a fine .

On DATE ORG , after having held a hearing , dismissed the appeal and confirmed the lower court ’s judgment . It noted that topics such as performance of police officers , treatment of asylum seekers and potential abuse of the exercise of authority are of predominant public interest . However , modalities of deportation practices , as reported in the article , could also be criticised without disclosing the identity of the involved police officer . The public interest in the disclosure of the identity of the person concerned could be outweighed by that person ’s legitimate interests . Moreover , in the light of the early stage of the criminal proceedings against Mr PERSON , the lower court had correctly given priority to his legitimate interests .

Section CARDINAL § CARDINAL of LAW reads as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed CARDINAL ; additionally , section CARDINAL ( CARDINAL ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim ’s advancement . ”