Remainder inadmissible;Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lived until his arrest in GPE . He is serving a sentence in a correctional colony in the town of GPE , in GPE .

On DATE the ORG found PERSON . and PERSON guilty of several counts of aggravated robbery . In particular , ORG found it established that on DATE the defendants , acting together with the applicant , the criminal proceedings against whom had been adjourned in view of his absconding during the investigation , and Mr O. , the criminal case against whom had been closed following his death , had robbed a warehouse in the village of ORG in GPE . ORG further held that on DATE defendant PERSON , assisted by PERSON , the criminal proceedings against whom had been stayed following his escape , the applicant and PERSON had robbed several warehouses in the village of GPE in GPE . At the same time , the court acquitted PERSON . of an additional robbery charge , having found no evidence in support of the accusation that on DATE he and PERSON , PERSON , PERSON and the applicant had participated in another robbery in the village of GPE in GPE

As regards the robbery in the village of ORG , the conviction was based on testimonies by defendant PERSON . and the director general of the company and owner of the warehouse , PERSON , and on written depositions made during the pre - trial investigation by a warehouse guard , PERSON , and Mr O. The statements were as follows :

- defendant PERSON . partly admitted his guilt . He argued that , having agreed to the applicant ’s proposal and acting on the latter ’s detailed instructions , he had gone to the warehouse . The applicant had forced him to watch over the warehouse guard , whom the applicant had beaten and tied up . PERSON also admitted that he had helped the applicant and PERSON to load stolen goods into a car and had received money from the applicant for his participation in the robbery ;

- in his written statements Mr O. had given a similar account of the events ;

- the company director stated that on TIME of CARDINAL DATE he had been informed of the robbery . Having arrived at the warehouse , he had noticed that the guard had been severely beaten up ;

- the warehouse guard testified that on DATE CARDINAL unknown individuals , whom he was unable to identify , had attacked him , beaten and tied him up . He had then heard someone robbing the warehouse .

As to the robberies in the village of GPE , the grounds for the conviction were testimonies made by defendant PERSON and the representative of the owner of the warehouse , PERSON , in open court and on written depositions by a warehouse guard , PERSON . and late Mr O. , which they had made to the investigating authorities .

Defendant PERSON partly admitted his guilt and stated that in DATE the applicant , taking advantage of his trust , had asked him to help load a car . They had gone to the warehouse . Acting on the orders of the applicant , of whom he was afraid , PERSON had helped to move the goods from the warehouse .

The representative of the owner of the warehouse confirmed that there had been a robbery at the warehouse .

In his statements to the investigators , Mr O. had admitted to having helped the applicant and PERSON to rob the warehouse .

NORP The guard Kh . stated that on DATE CARDINAL unknown persons had broken into the warehouse , tied him up and stolen goods .

ORG decision to acquit defendant PERSON . of the robbery charge pertaining to the events in the village of GPE was based on the testimony by PERSON . and written depositions by a warehouse guard , Mr Me . , and by Mr O.

Mr Sh . insisted that in DATE the applicant had asked him to drive him to the village , having promised money for his help . He had agreed on the condition that his assistance would not involve any criminal activities . PERSON claimed to have had no knowledge that the applicant and PERSON had committed the robbery .

NORP The warehouse guard , PERSON . , stated that on DATE an unknown man had attacked him , beaten and tied him up . He did not remember the attacker .

In his written depositions Mr O. admitted having assisted the applicant and PERSON in their plan to rob the warehouse .

The judgment of DATE became final on DATE , having been upheld on appeal .

As indicated above ( see paragraph CARDINAL above ) , the applicant had absconded and the criminal proceedings against him had therefore been adjourned . On DATE he was arrested in the town of GPE . DATE he was transferred to PERSON and placed in temporary detention facility no . CARDINAL .

DATE ORG served the applicant with a bill of indictment , accusing him of organising the robberies of the warehouses in the villages of ORG , ORG . The charges were based , inter alia , on statements made by PERSON . and Mr B. during interrogations and confrontation interviews between them and the applicant in the course of the criminal proceedings against the applicant . The CARDINAL accomplices maintained their testimony given during the DATE criminal proceedings ( see paragraphs CARDINAL , CARDINAL and DATE above ) . In DATE the case was committed for trial .

On DATE ORG held the first trial hearing , to which the applicant ’s alleged , and already convicted , accomplices in the robberies , PERSON . and PERSON , as well as other persons whose written depositions or testimony in open court had served as the basis for the judgment of DATE , were summoned as witnesses ( see paragraphs QUANTITY above ) . None of them attended . ORG noted in TIME of the hearing that the guard of the warehouse in GPE had died , PERSON had travelled to GPE on a business matter and Mr PERSON . lived in another town . The reasons for the absence of the remaining witnesses were unknown . The Government provided the ORG with a typed copy of a letter of DATE from PERSON . informing ORG that in view of financial difficulties and his inability to leave his business matters unattended he had been unable to attend the trial . The Government also submitted a copy of a telegram sent by PERSON . to ORG on DATE . PERSON had confirmed his inability to appear at the trial against the applicant and fully maintained the statements he had made during the pre - trial investigation and the court proceedings leading to his conviction in DATE .

NORP The applicant ’s lawyer successfully asked ORG to hear evidence from PERSON , an accomplice to the robbery committed in GPE on DATE , and PERSON .

During the hearing PERSON testified that in DATE , having been approached by PERSON , he had driven to the warehouse . On arrival , he had witnessed PERSON , PERSON and CARDINAL unknown persons taking goods from the warehouse . The goods had been loaded up on his car . PERSON had not seen the applicant and had not been aware of his alleged participation in the robbery .

Mr Ma . stated that in DATE PERSON had brought metal objects to him and had asked him to store them . He had subsequently learnt from the police that the goods had been stolen from a warehouse .

At the same hearing , ORG heard evidence from a representative of the owner of the warehouse in the village of GPE , PERSON , who confirmed the theft of goods from the warehouse on DATE .

Upon the parties’ request , ORG again sent summonses to the witnesses . On DATE and DATE it issued orders to a bailiff ’s office requiring it to ensure PERSON presence at the hearing . The orders indicated that PERSON had been properly summoned to the hearings but had failed to attend .

No witnesses appeared before ORG at the following hearing on DATE . In view of their absence , the prosecutor asked ORG to read out the statements they had made to the investigating authorities in the DATE proceedings . The applicant and his lawyer objected to the reading out of the statements by the presumed accomplices in the robberies , PERSON . , PERSON , PERSON and PERSON , noting that the applicant had been “ denied an effective opportunity to confront those witnesses ” . At the same time , the applicant argued that during the confrontation interviews the investigator had warned PERSON . and PERSON against changing their earlier statements , threatening them with revocation of their parole and criminal prosecution .

ORG rejected the objection . Having noted that it was impossible to hear certain witnesses in open court owing to their deaths , and having taken into account that the applicant had had confrontation interviews with PERSON and PERSON . during the pre - trial investigation against him , the court proceeded with the reading out of the ORG statements .

On DATE the ORG found the applicant guilty of aggravated robbery committed in the village of ORG on CARDINAL DATE , in the village of GPE on DATE and in the village of GPE on DATE and sentenced him to CARDINAL years’ imprisonment . In addition to the written depositions by the witnesses , the conviction was based on records of crime - scene examinations and inventories showing that goods had been stolen from the warehouses .

In the judgment of CARDINAL DATE ORG addressed the applicant ’s objection to the use of the statements by witnesses whom he had been unable to cross - examine in open court . It held as follows :

“ The court can not agree with [ the applicant ’s ] and his lawyer ’s statement that the accusations against him are based on statements by persons with a vested interest [ in his conviction ] and who can not be trusted .

The fact that PERSON . , PERSON , PERSON and PERSON had taken part in the criminal acts of which [ the applicant ] stands accused can not call into question the truthfulness of their statements . In exposing [ the applicant ] they , at the same time , [ admitted to their own guilt ] in [ respect of ] those crimes . In particular , PERSON and PERSON . have already been punished for that .

As the case - file materials show ... PERSON willingly went to ORG and wrote a confession statement in which he described the robberies he had committed together with [ the applicant ] , PERSON . , PERSON , PERSON and Mr V .. At the same time , he did not play down the importance of his role in the criminal acts .

[ The applicant ’s ] statement that PERSON , PERSON . and Mr O. had slandered him because PERSON had forced them to do so is wanton and unsubstantiated . The fact that PERSON . had been convicted of having slandered other persons in the course of unrelated criminal proceedings can not serve as an undisputable ground for doubting the truthfulness of his statements in the present case .

The court can not accept [ the applicant ’s ] and his lawyer ’s argument that the court has violated the principle of direct examination of evidence at a court hearing and the defendant ’s right to defend himself . The statements which were read out at the court hearing are admissible evidence because interrogations and confrontations with those persons had been conducted in accordance with the requirements of LAW . The court did not have an opportunity to question those persons at the court hearing because , despite every possible measure taken , it was unable to establish their places of residence .

However , the law allows the reading out in court of statements by defaulters . ”

The applicant and his lawyer appealed . In particular , they argued that the conviction was exclusively based on statements by the witnesses questioned by the investigating authorities whom the applicant had been unable to confront in open court .

On DATE ORG upheld the judgment , endorsing the reasons given by ORG . In response to the applicant ’s arguments concerning the admissibility of evidence , ORG held as follows :

“ The pre - trial investigation and trial were conducted thoroughly and objectively , in accordance with the requirements of the criminal procedural law and in compliance with the rights and lawful interests of the [ applicant ] and other parties to the criminal proceedings . [ The applicant ’s ] right to defence was not violated . Confrontations between [ the applicant ] and PERSON and between [ the applicant ] and PERSON . were conducted in accordance with the requirements of ORG CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , [ and ] the lawyer ... protected the [ applicant ’s ] interests in the course of those investigative procedures .

The court correctly established the factual circumstances and the conclusions set out in the judgment completely correspond to [ the facts ] . The judgment is based on evidence examined at the court hearing and the court gave a correct interpretation to it . The court fully and objectively examined the materials of the criminal case file ...

At the hearing the court examined the prosecutor ’s motion to read out the statements by [ CARDINAL witnesses , including the CARDINAL alleged accomplices ] ; it heard the parties’ opinion concerning that issue and ... it issued a decision .

The decision taken by the court to read out the statements of the above - mentioned persons is appropriately reasoned , substantiated and correct . The court considered that the statements which were to be read out at the hearing had been collected in accordance with the requirements of the criminal procedural law , that by virtue of LAW justice is executed on the basis of equality of the parties , that by virtue of LAW [ LAW ] has supreme legal effect in GPE and other laws can not contradict its principles and rules . Mr O. ... had died before the trial commenced , PERSON absconded [ and ] his place of residence was unknown to the court , the other witnesses defaulted despite being summoned by the court , [ the applicant ] had confrontations with PERSON . and PERSON during which they entirely confirmed their statements .

In such circumstances , the reading out of the statements by the abovementioned persons corresponded to the principle that criminal proceedings in GPE should be adversarial ; the court compared the statements to other evidence in the case and evaluated them in accordance with the requirements of the law .

[ The applicant ’s ] guilt was confirmed by the statements by the [ witnesses , including those by the alleged accomplices ] and evidence contained in the written materials of the file . The court examined the arguments of the defendant and his lawyer that [ the alleged accomplices ] had slandered [ the applicant][The alleged accomplices ] , while exposing [ the applicant ’s ] guilt , did not play down their own involvement in the case ; PERSON . and PERSON were convicted of the crimes committed . In such circumstances the court had no reason to doubt the statements by [ those witnesses ] . ”

On DATE , having studied the voluminous case file comprising material , documentary and expert evidence and having heard a substantial number of witnesses , ORG found the applicant , who was represented by counsel throughout the proceedings , guilty of unlawful possession of a weapon and forgery of documents . The applicant was also found guilty of having aided and abetted aggravated murder and was sentenced to DATE imprisonment .

The judgment became final on DATE when ORG of GPE upheld the conviction for murder and unlawful possession of a weapon , discontinued the criminal proceedings in respect of the charge of forgery of documents and reduced the sentence by DATE . ORG noted that ORG findings were based on a thorough and well - reasoned analysis of extensive evidence presented both by the prosecution and defence .

According to the applicant , while the criminal proceedings against him were still pending , local newspapers published several articles expressing the opinion that he was guilty of the murder .

While the applicant was serving his sentence , his former wife lodged an action before ORG of PERSON seeking termination of the applicant ’s parental rights over their child .

In DATE ORG sent a copy of the statement of claim with attachments to the correctional colony where the applicant was held , asking him to provide observations in reply by DATE .

The observations from the applicant arrived on DATE . At the same time , the applicant asked ORG to call PERSON as his representative and provided a list of witnesses to be called on his behalf , including his parents and sister . DATE PERSON sought leave with ORG for the applicant to appear in court .

On DATE the applicant received a copy of a decision by which ORG had fixed a preliminary hearing . The applicant immediately sent a letter to ORG explaining that he was serving a prison sentence and seeking leave to attend .

In DATE the applicant repeated his request . No reply followed .

A prosecutor who attended the hearings before ORG sought dismissal of the action , arguing that the applicant had been unable to actively participate in his child ’s life for practical reasons but was interested in maintaining a relationship with the child . The prosecutor noted that the applicant ’s relatives regularly passed on information to him about his child .

It appears from the parties’ submissions that ORG called CARDINAL witness from the applicant ’s witness list , his sister , having refused to call his parents .

On DATE ORG , in the presence of the applicant ’s representative , upheld the action and terminated the applicant ’s parental rights , having considered that his absconding from the law - enforcement authorities and being on the run for a long time could not be accepted as a valid justification for his failure to fulfil his parental responsibilities . ORG stressed that the applicant and his representative had not provided it with evidence to demonstrate that the applicant had effectively carried out his parental role .

DATE the applicant received a copy of the judgment . He lodged an appeal , arguing that he had been unable to present his arguments before ORG due to his absence from the hearings . He further asked that his presence at the appeal hearing be ensured .

On DATE ORG , in the presence of the applicant ’s representative , upheld the judgment of DATE . Having ruled on the subject of the applicant ’s attendance , ORG held that the law did not require civil courts to obtain attendance by the parties and that ORG responsibility was limited to duly notifying the parties of the hearings .

The reading out of earlier statements made by a victim or a witness is permitted if the parties give their consent to it and if ( CARDINAL ) there are substantial discrepancies between the earlier statement and the later statement before the court or ( CARDINAL ) the victim or the witness is not present before the court ( LAW ) .

The court may , without seeking the consent of the parties , read out earlier statements by the absent victim or witness in the case of ( CARDINAL ) death , ( CARDINAL ) NORP serious illness , ( CARDINAL ) NORP refusal to appear by the victim or the witness if they are citizens of other GPE or ( CARDINAL ) natural disaster or other force majeure circumstances ( LAW ) .

If a witness or a victim does not obey a summons to appear without a valid reason , they may be brought to the courtroom under escort ( Article CARDINAL ) .

Witnesses and victims are entitled to the reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings ( Article CARDINAL ) .

Article CARDINAL of LAW , setting out the procedure for the reopening of criminal cases , reads , in so far as relevant , as follows :

“ CARDINAL . Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be reopened if there are new or newly discovered circumstances .

New circumstances are :

( CARDINAL ) a violation of a provision of LAW committed by a court of GPE during examination of a criminal case and established by ORG , pertaining to :

( a ) application of a federal law which runs contrary to provisions of LAW ;

( b ) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms ;

( c ) other new circumstances . ”

The Code of Civil Procedure of GPE ( “ the ORG ” ) provides that individuals may appear in court in person or may act through a representative ( LAW ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .

On several occasions ORG has dismissed as inadmissible complaints by detainees whose requests for leave to attend hearings were refused by civil courts . It has reasoned that the relevant provisions of LAW and LAW do not , as such , restrict a detainee ’s access to court . ORG has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court , either through a representative or in any other way provided by law . If necessary , a hearing should be held at the convict ’s place of detention , or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict ’s place of detention to obtain his / her submissions or to take any other procedural steps ( decisions CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) .

Under Articles CARDINAL and CARDINAL of the ORG a court may hold a session elsewhere than in a courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .

Article CARDINAL of the ORG contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances . A judgment of ORG finding a violation of LAW in a case in respect of which an applicant lodged a complaint with the ORG should be considered a new circumstance warranting a reopening ( LAW ( CARDINAL ) ) .


Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

On DATE and DATE ORG ( PERSON i GPE dhe PERSON Pronave – “ the Commission ” ) , recognised the applicants ' title to CARDINAL plots of land measuring QUANTITY . m and QUANTITY , respectively . ORG held that it was impossible for the applicants to have the whole of the original plot of land allocated to them . It decided to restore to the applicants a vacant plot of land ( një truall i lirë ) measuring QUANTITY m. , which was situated within the grounds occupied by ORG , and ordered the authorities to pay compensation in respect of a plot of land measuring QUANTITY m. Moreover , it ordered that the applicants ' title to the property be entered in ORG .

The applicants lodged a civil action in view of their impossibility to recover the plot of QUANTITY m. By virtue of ORG decision of DATE it was decided that the applicants should receive compensation in lieu of the original property in CARDINAL of the forms provided for by law in respect of the plot of land measuring QUANTITY m. ORG found that , in so far as that plot of land was an integral part of ORG LOC , it could not be considered vacant and thus recoverable by the applicants . This decision was upheld by ORG on DATE . Consequently , the applicants were to receive compensation in accordance with LAW for the totality of the CARDINAL sq . m. of land ( see § § CARDINAL of the principal judgment ) .

Further details are set out in the principal judgment .

The CARDINAL Act contained the criteria to be employed for assessing the financial compensation to be awarded to former landowners . According to LAW , GPE was to be divided into CARDINAL zones A , B and C. The price reference for the property located in zone A was fixed at CARDINAL NORP leks ( ALL ) per square metre .

By virtue of CARDINAL decisions , CARDINAL of which were adopted in DATE and CARDINAL in DATE , the ORG approved and issued property valuation maps as listed above . The maps , which were to be used in the determination of the award of financial compensation by the competent authorities , included the reference price per square CARDINAL throughout the country .

NORP The first decision fixed the price of land for the regions of GPE , PERSON , PERSON and ORG ; the second decision fixed the price of land for the regions of ORG , PERSON , PERSON and PERSON ; the third decision fixed the price of land for the regions of ORG , PERSON , ORG , PERSON and GPE . The fourth decision contained an updated price list for certain cities . According to that decision , the reference price per square metre for the area in which the applicants ' property was located was valued at CARDINAL .


Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant lives in GPE .

On DATE ORG and Highways expropriated plots of land belonging to the applicant in NORP , GPE . A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place .

Following the applicant ’s request for increased compensation , ORG awarded him MONEY ( TRL ) of additional compensation plus interest at the statutory rate of PERCENT per annum , namely the rate applicable at the date of the court ’s decision . The date , CARDINAL DATE was fixed by the domestic court for the running of the statutory rate of interest .

On DATE , upon ORG appeal , ORG upheld the decision of the first instance court . On DATE the administration paid the applicant ORG CARDINAL,CARDINAL,CARDINAL,CARDINAL as the additional compensation together with interest . The interest on the additional compensation was calculated at the statutory rate applicable between the running date of the interest and DATE , namely PERCENT . As regards the period after DATE the interest was calculated at the then applicable rate , namely PERCENT .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-3-b;Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The applicant has been in custody since DATE in connection with various criminal proceedings brought against him on suspicion of his having taken part in the activities of the terrorist organisation known as " Prima linea " .

When he lodged his application with the Commission on DATE , there were CARDINAL prosecutions pending against PERSON . The first of these ended in a judgment of ORG of DATE , which became final on DATE . The court sentenced him to DATE and DATE imprisonment and a fine of MONEY for aiding and abetting aggravated armed robbery , aiding and abetting aggravated theft , aiding and abetting the handling of stolen goods and unlawful possession of weapons . The second trial ended in a judgment of ORG of CARDINAL DATE , which became final on DATE . The court sentenced him to DATE , DATE imprisonment for murder , aggravated armed robbery , treasonable conspiracy , membership of an armed organisation and other offences . The third trial , at ORG , ended in a judgment of DATE , which became final on DATE . The court imposed a sentence of DATE imprisonment and a fine of MONEY for armed robbery and other offences . ORG of the applicant 's correspondence during his detention in FAC

On CARDINAL DATE the judge responsible for the execution of sentences ( magistrato di sorveglianza ) at GPE , where PERSON had been in custody since DATE , decided under LAW of PERSON no . CARDINAL of DATE ( see paragraph CARDINAL below ) that his correspondence and that of other prisoners in the special unit of ORG should be censored for DATE . On CARDINAL DATE ORG declared inadmissible an appeal on points of law lodged against that order on an unspecified date .

After DATE , the GPE judge responsible for the execution of sentences renewed the censorship DATE , in DATE , DATE and on DATE and DATE and DATE . The reasons given for these decisions were , firstly , that the monitoring of the applicant 's correspondence and that of the other prisoners concerned had made it possible to discover differences of opinion within the group of former terrorists and to prevent confrontations and acts of vengeance and , secondly , that there was a danger that the applicant would use the mail to commit offences or prejudice public order or safety .

It is not contested that the following letters were inspected : ( a ) a letter of CARDINAL DATE from the applicant to the lawyer Mr PERSON ; ( b ) a registered letter of DATE from the applicant to the lawyer Mr PERSON ; ( c ) a letter of CARDINAL DATE from the applicant to Mr PERSON ; and ( d ) letters of CARDINAL DATE and DATE from the applicant to Mr PERSON .

On an unspecified date the applicant challenged the decision of DATE ( see paragraph CARDINAL above ) in the Turin Sentence Execution Court ( tribunale di sorveglianza ) . On DATE that court declared his appeal inadmissible on the ground that the relevant NORP PERSON did not provide any remedy in respect of such decisions in view of their administrative nature . The court 's decision was served on PERSON on DATE , and on DATE he appealed on points of law . In a pleading of CARDINAL DATE his counsel argued , in particular , that the possibility of appealing to ORG against decisions to impose censorship was provided for in NORP legislation . He also maintained that the measure in issue , applied " collectively " to a group of prisoners , irrespective of the individual circumstances of each , was absolutely unjustified and that the delay in forwarding to him , after it had been inspected , the applicant 's letter informing him of the receipt of the court 's decision rejecting his appeal had impeded the exercise of the rights of the defence . ORG , however , did not forward the appeal and other procedural documents to ORG , but set the matter down for hearing on DATE , when it rejected the appeal , holding it to be essentially identical with the earlier one it had dismissed on DATE .

On DATE the applicant 's lawyer asked the court to forward the appeal to ORG , which alone was competent to rule on an appeal that had been made direct to it .

Shortly afterwards , on CARDINAL DATE ( see paragraph CARDINAL above ) the GPE judge responsible for the execution of sentences renewed the order that PERSON correspondence should be censored . On DATE the applicant 's lawyer lodged a fresh appeal on points of law with ORG . On CARDINAL DATE the court declared inadmissible " the appeal against the decision declaring the appeal inadmissible " and did not forward the appeal to ORG . B. The applicant 's continued detention

On an unspecified date the applicant was transferred to FAC .

In a report drawn up by the prison management in DATE , it was stated that the applicant 's behaviour towards the staff and his attitude towards his past had shown some improvement . On DATE , taking the view that this progress was not sufficient , ORG dismissed an application by PERSON to be given semi - custodial treatment instead of being kept in detention . From DATE , however , the applicant was granted short periods of prison leave .

On DATE , on the basis of CARDINAL reports of DATE and DATE which indicated further , substantial progress , the court ordered that the applicant should be given semi - custodial treatment .

LAW no . CARDINAL of DATE ( " Law no . CARDINAL " ) , as amended by LAW no . CARDINAL of DATE , provides that power in the matter of censorship of prisoners ' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter . The judge may order censorship of a prisoner 's correspondence in a reasoned decision ; this provision , however , does not specify the cases in which such a decision may be taken .

The censorship of which the applicant complains consists , in particular , in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him , and in the stamping of letters for the purpose of showing that they have been inspected . Censorship can not extend to deleting words or sentences , but the judicial authority can order that CARDINAL or more letters shall not be handed over ; in that case , the prisoner must immediately be informed of the fact . This latter measure can also be ordered temporarily by the prison governor , who must , however , notify the judicial authority of his action .

LAW forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer , provided that the correspondence is recognisable as such and unless the judicial authority has well - founded reasons to believe that the correspondence constitutes the substance of the offence . Similarly , by LAW transitional provisions of LAW , the rules on the censorship of a prisoner 's correspondence that are laid down in PERSON no . CARDINAL and Presidential Decree no . CARDINAL of DATE do not apply to correspondence between the prisoner and his lawyer . It follows , among other things , that the only authority that may order censorship of that correspondence , and then solely in the case mentioned above , is the judge or court dealing with the case .

ORG has held on several occasions that the measure in issue is an administrative act and has also stated that NORP law does not provide any remedy in respect of it ; in particular , censorship can not be the subject of an appeal on points of law , since it does not affect the prisoner 's personal freedom ( Court of Cassation , judgments ORG . CARDINAL and DATE of DATE and CARDINAL DATE respectively ) .


Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Mr GPE is a NORP citizen who has been living in GPE since DATE .

In DATE , after proceedings had been instituted against the applicant with a view to his confinement in a psychiatric hospital , he was provisionally detained in such an institution .

On DATE ORG ( Landgericht ) , before which the applicant was represented by officially - appointed counsel , ordered that he be detained in a psychiatric hospital , pursuant to LAW . The court found that he had performed acts which constituted criminal offences ( insulting behaviour , assault occasioning bodily harm , resisting the police , causing a traffic hazard and unauthorised departure from the scene of an accident ) but that he could not be held responsible because he was suffering from a schizophrenic psychosis with signs of paranoia . Relying in particular on a medical expert ’s opinion , the court stated that ORG posed a danger to the general public because it had to be expected that he would commit further serious unlawful acts .

On DATE ORG ( Verwaltungsgericht ) , in one of numerous proceedings instituted by the applicant concerning his detention , declared that he was incapable of conducting ( betreiben ) court proceedings himself . The court considered that his mental illness was so obvious that it was not necessary to order an expert opinion on the point .

On DATE and again on CARDINAL DATE ORG , referring to LAW . CARDINAL of LAW ( see paragraph CARDINAL below ) , directed that the detention should continue . In the latter decision the court found that Mr GPE ’s delusions had become more severe and suggested that guardianship proceedings ( GPE ) be instituted against him .

On DATE Mr Megyeri , who had tried to have the criminal proceedings against him ( see paragraph CARDINAL above ) reopened , asked ORG to replace the lawyer who had acted for him in those proceedings ; he also asked why that lawyer had not been present when his detention had subsequently been reviewed . The court informed him in writing , on DATE , that there was no legal provision to the effect that counsel had to be officially assigned to detainees in review proceedings .

On DATE ORG again considered the applicant ’s possible release on probation under LAW . CARDINAL of LAW and decided against it . Referring to its decision of CARDINAL DATE , it found that it was too early to put to the test whether he would no longer commit offences if he were not in hospital . It relied in particular on a written report by CARDINAL experts , including CARDINAL doctors from the hospital , according to which Mr GPE ’s state of mental health had further deteriorated , he was not willing to undergo treatment and he showed a distinct propensity towards aggressive behaviour and violence . It also relied on its own impression of the applicant , formed when it heard him on DATE , on which occasion he had made numerous complaints and claimed to be someone else . Referring to recent case - law of ORG ( Bundesverfassungsgericht - see paragraph CARDINAL below ) , ORG considered that the applicant ’s continued detention was proportionate to the aim pursued , that is the protection of the public . It also noted that proceedings with a view to placing him under guardianship were pending .

On DATE ORG ( Oberlandesgericht ) dismissed Mr GPE ’s immediate appeal ( sofortige Beschwerde ) against ORG decision .

The applicant was not represented by counsel in the DATE proceedings concerning his possible release . Whilst he had previously raised the question of legal assistance ( see paragraph CARDINAL above ) , he apparently did not specifically ask ORG or ORG to assign counsel to him and this point was not mentioned in their decisions . According to ORG , it was to be assumed , since NORP law required the appointment of counsel in certain circumstances , that those courts had considered the matter of their own motion .

On CARDINAL DATE a panel of CARDINAL judges of ORG ( which , in accordance with its usual practice in such cases , had not held a hearing ) declined to accept for adjudication the applicant ’s constitutional complaint ( ORG ) against the decisions of ORG and ORG , on the ground that it did not offer sufficient prospects of success . ORG considered that there could be no objection under constitutional law to the fact that the courts had not assigned defence counsel in the DATE proceedings , since it had not until then been obvious that the applicant could not defend himself due to his illness ( see paragraph CARDINAL below ) . It added , however , that having regard to the stabilising clinical situation and the fact that the end of his detention was not foreseeable , the appointment of an official lawyer would in future come into the picture ( in Betracht kommen wird ) .

On DATE the GPE ORG ( ORG ) decided to place Mr GPE under guardianship . After hearing the applicant and having regard to an expert opinion of DATE , it found that he was suffering from a serious mental illness that prevented him from dealing with his private affairs .

In subsequent review proceedings after DATE the applicant was represented by court - appointed counsel . Continuation of his detention was ordered by ORG on DATE , but it reduced to DATE the period for a further review as it was expected that medical treatment would lead to an improvement in his state of health .

On DATE ORG , which regarded as particularly relevant the fact that Mr GPE was now under guardianship , directed that he be released on probation as from CARDINAL DATE . It fixed a period of DATE for supervision of his conduct and instructed him not to leave specified accommodation without the supervisory agency ’s approval .

Since then , the applicant has been living in an open ward of a psychiatric hospital in GPE . His requests for restoration of his legal capacity have , to date , been rejected , on the ground that his condition has not improved .

The following provisions of LAW ) are relevant in the present case .

" Where there is no provision for a maximum period ... , the court shall suspend on probation the further execution of the detention as soon as the detainee can responsibly be allowed out of the psychiatric hospital to see whether he will desist from further unlawful acts . Suspension shall be followed by supervision of conduct . "

" ( CARDINAL ) The court may at any time review the question of whether the further execution of the detention should be suspended on probation . It shall review this before the expiry of certain periods .

( CARDINAL ) The periods shall be :

- [ for detention ] in a psychiatric hospital , DATE ;

According to case - law of ORG ( decision of CARDINAL DATE - CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL - Entscheidungssammlung des Bundesverfassungsgerichts , vol . CARDINAL , pp . CARDINAL et seq . ) , the principle of proportionality governs the detention of a person in a psychiatric hospital and its continuance . When deciding whether to suspend on probation the further execution of such detention , the court has to consider in particular the risk of significant ( erhebliche ) criminal offences , the detainee ’s previous conduct and criminal behaviour , relevant changes in the circumstances since his detention was ordered and the detainee ’s future living conditions . The longer the detention in a psychiatric hospital lasts , the stricter the test of proportionality becomes .

The question of the defence of an accused by counsel is governed by LAW ) . Paragraph CARDINAL lists a number of specific cases in which the participation of counsel is obligatory ; paragraph CARDINAL provides :

" In other cases , the presiding judge , upon request or ex officio , shall appoint a defence counsel if , having regard to the seriousness of the crime or the difficulty of the factual or legal issues involved , the assistance of a defence counsel appears to be necessary , or if it is obvious that the accused can not defend himself ... "

Paragraph CARDINAL is applied by analogy to review proceedings under LAW .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 6-3-b;No violation of P1-1;Non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Roman Wieruszewski

The applicant was born in DATE and lives in GPE .

The applicant had been a judge for DATE . By virtue of an amendment to the law on ORG DATE , which came into effect on DATE , the status of a “ retired judge ” was created ( see paragraph CARDINAL below ) .

On DATE the applicant who had retired on DATE on grounds of ill health acquired the status of a “ retired judge ” . Under the applicable provisions of domestic law retired judges were entitled , as from DATE , to a special retirement pension equivalent to seventyfive per cent of their last full salary ( sędziowski stan spoczynku ) DATE .

On DATE LAW entered into force . By a further amendment to the DATE Law of DATE , which came into effect on CARDINAL DATE , retired judges who had acquired the right to a special retirement pension were required to submit a declaration under that LAW . In DATE the applicant made a declaration under the provisions of that Act to the effect that she had never secretly collaborated with the NORP secret services .

Subsequently , on an unspecified date , the Commissioner of Public Interest applied to ORG , acting as the firstinstance lustration court , to institute proceedings in the applicant ’s case under LAW on the ground that she had lied in her lustration declaration by denying that she had collaborated with the secret services . He referred to documents showing that in DATE the applicant had agreed to collaborate and from DATE until DATE had submitted CARDINAL written reports .

During the proceedings the applicant was represented by a lawyer . The case file could be consulted by the applicant and her lawyer in the secret registry of the lustration court . They were authorised to make notes . However , the notes could be made only in special notebooks which were subsequently sealed and deposited in the registry . It was possible for them to make notes , but not to take the notes from the registry .

On an unspecified date ORG , acting as the firstinstance court , held a hearing in the applicant ’s case . The hearing was not public . She was questioned by the court and commented on the evidence at the court ’s disposal . The case file was composed of the applicant ’s lustration declaration , copies of certain documents contained in the applicant ’s file compiled by the communist secret police and the Commissioner ’s application for lustration proceedings to be instituted .

On DATE the court gave a judgment in which it found that the applicant had made an untrue lustration declaration because she had been a willing secret collaborator of the NORP secret services . It observed that the documents in the case file were incomplete , but that they were nevertheless sufficient to find that the applicant had been a secret collaborator . The applicant appealed .

On DATE the same court , acting as a court of appeal , upheld the contested judgment , holding that the evidence in the case file was sufficient to find that the applicant had knowingly and intentionally collaborated with the NORP secret services . The applicant submitted a cassation appeal to ORG , which dismissed it by a judgment of DATE .

From DATE to DATE the applicant received MONEY ( ORG ) per month ( ORG MONEY after tax ) as the special retirement pension .

Subsequently , on DATE , ORG , acting upon a request submitted by the Minister of ORG , instituted proceedings to divest her of her status as a retired judge . It also decided that payment of the special retirement pension to the applicant should cease with effect from DATE .

In her pleadings submitted to the ORG the applicant argued that a decision to divest her of her special pension was unlawful as the requirements of LAW did not apply to retired judges . Even supposing that retired judges were obliged to make a lustration declaration , they could not be divested of their status under the provisions of LAW . In any event , such a decision could only be given after disciplinary proceedings had been conducted under the provisions of LAW , but no such proceedings had been conducted in her case . She requested that payment of her special pension be resumed .

On DATE ORG adopted a resolution by which the applicant was divested of the special pension to which she was entitled on account of her status as a retired judge . The applicant appealed , essentially reiterating the arguments which she had raised in her pleadings submitted to the ORG .

On DATE ORG dismissed her appeal against this resolution .

In DATE the applicant requested the social insurance authority to grant her an ordinary retirement pension . Her request was refused by a decision of DATE on the ground that the applicant had not been working for the statutory period of DATE necessary for an entitlement to a retirement pension to accrue .

Later on , in DATE , she was granted a partial disability pension ( renta z tytułu częściowej niezdolności do pracy ) from DATE , DATE when she had lodged a request for an ordinary social insurance pension , to DATE , when the applicant was to reach the statutory retirement age , in a DATE amount of ORG CARDINAL ( ORG CARDINAL after tax ) .

As from DATE the applicant ’s pension was reassessed against inflation . From then on she was paid ORG CARDINAL per month ( ORG CARDINAL after tax ) .

As from DATE the applicant has received her DATE retirement pension in the amount of ORG CARDINAL ( ORG CARDINAL after tax ) .

On DATE LAW ( Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach DATE osób pełniących funkcje publiczne ) entered into force . Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era . It lost its binding force on DATE . The relevant domestic law and practice have been extensively summarised in the following judgments : PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE ; PERSON GPE , no . GPE , § § DATE , CARDINAL DATE ; and PERSON GPE , no . CARDINAL , § § DATE , DATE ) .

On DATE amendments of CARDINAL DATE to the PERSON on ORG DATE ( “ the DATE LAW ) entered into force ( “ the DATE amendments ” ) . The amendments introduced the status of a “ retired judge ” . By a further amendment which entered into force on DATE it was provided that a judge , with the status of a retired judge , who had retired on grounds , inter alia , of age or illhealth should be entitled to remuneration equal to CARDINAL per cent of his or her basic salary plus a bonus calculated on the basis of DATE of service .

On DATE further amendments of DATE to the DATE PERSON came into effect ( “ the DATE amendments ” ) . The amendments provided , so far as relevant :

“ Article CARDINAL .... § CARDINAL . A retired judge shall be obliged to keep the dignity of the position of a judge .

§ CARDINAL . A retired judge shall take disciplinary responsibility for a failure to maintain the dignity of the position of judge after having retired and for any failures to maintain such dignity when serving as a judge . ”

The DATE amendments further provided , inter alia , as follows :

“ LAW . Judges ... who have acquired the right to the retirement pension or disability pension shall submit the declaration envisaged under LAW of [ LAW ] .

LAW . Retired judges ... who worked for or served in the [ ORG ’s security services ] or who have submitted untrue declarations concerning such service or employment or collaboration with [ such services ] shall lose the right to retired judge status and to remuneration in the retired status .

§ CARDINAL . The circumstances referred to in § CARDINAL shall be ascertained according to the procedure laid down in [ LAW ] . The loss of the rights shall occur from the date of issue of the decision . ”


Violation of P1-1;Just satisfaction reserved

Anatoly Kovler;Christos Rozakis;Ewald Wiederin;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

The applicant is a former lawyer who was born in DATE and lives in GPE .

On DATE he was admitted to the bar and started to practice as a lawyer in GPE .

On DATE ORG ( NORP ) of ORG ( Rechtsanwaltskammer ) provisionally suspended the applicant 's right to practice and on DATE bankruptcy proceedings were opened against him . Taking note of that fact , on DATE ORG of ORG ( Ausschuß der Rechtsanwaltskammer ) decided that the applicant had lost his right to practise as a lawyer pursuant to section CARDINAL(CARDINALa ) of LAW ( ORG ) . This provision , as in force at that time , provided that the right to exercise the profession of a practising lawyer shall be revoked following the binding opening of bankruptcy proceedings until their binding termination and the final dismissal of a request to open bankruptcy proceedings for lack of sufficient means . It further appears that , in connection with the bankruptcy proceedings , the applicant was convicted of embezzlement by ORG on DATE and sentenced to DATE imprisonment and on DATE an additional sentence of DATE was imposed on him .

On DATE the applicant asked ORG to strike him out of ORG ( PERSON ) for health reasons . On DATE ORG informed the applicant that it had taken note of his request . However , the Government submitted that the plenary assembly of ORG had struck the applicant out of the List of Lawyers on DATE . The applicant though submitted that no such decision had been taken by the plenary assembly .

It appears that ORG continued to address invoices for membership fees ( including contributions to the pension fund ) to the applicant until DATE . The Government submitted that those requests were based on a clerical error by the ORG 's administration and that the respective invoices were subsequently declared void .

On DATE the applicant made an application to ORG asking it to grant him an old - age pension . In his request he referred to the fact that he had practised as a lawyer DATE .

On DATE Division IV of ORG of ORG ( Ausschuß der Rechtsanwaltskammer ) dismissed the applicant 's application . It found that , under the relevant provisions of LAW , an old - age pension is granted to a lawyer when he or she reaches the retirement age , that is , sixtyfive DATE . However , he or she must also have renounced his or her right to practise as a lawyer . Given that , before he reached the retirement age , the applicant had already lost his right to practice as a lawyer , he was not entitled to an old - age pension .

On DATE the applicant filed an objection ( PERSON ) . He submitted that the above - mentioned decision had been unlawful . If , however , the findings of ORG were correct , the regulations on the entitlement to an old - age pension were unconstitutional because the decision to refuse him a pension after he had paid contributions to the pension fund for DATE had been arbitrary .

On DATE the Plenary of ORG rejected the objection . It observed that the bankruptcy proceedings which had been opened against the applicant were still pending and the applicant could not claim a pecuniary right without the consent of the receiver . Given that the applicant 's objections had been filed without the consent of the receiver , the objection had had to be rejected .

On DATE the applicant lodged a complaint with ORG against the above - mentioned decision .

On DATE ORG quashed the Plenary decision of DATE . It found that a pension claim was not CARDINAL of the claims falling entirely under the list of assets which were subject to bankruptcy proceedings . Accordingly , the applicant himself had had the right to file an objection .

On DATE the Plenary of ORG decided again on the applicant 's objection . It found that , under the relevant provisions of LAW , the person applying for the pension must , when reaching the retirement age , still be a member of ORG . Given that , before reaching the retirement age , the applicant had lost his membership of ORG because he had also lost his right to exercise his profession , he was not entitled to a pension .

On CARDINAL DATE the applicant lodged a complaint with ORG in which he argued that the decision of ORG had violated the principle of equality and his right to peaceful enjoyment of his possessions . At the same time he also lodged a complaint with ORG .

On DATE ORG dismissed the applicant 's complaint . It found that the applicant would have had a right to an old - age pension only if CARDINAL ) he had reached the retirement age and CARDINAL ) he had still been enrolled in the List of Lawyers of the Austrian Chamber of Lawyers at that time . While the applicant had met the first condition , he had not met the second condition because bankruptcy proceedings had been opened against him which had led ex lege to the applicant loosing his right to practice and , thereby , loosing his membership of ORG .

On DATE ORG refused to deal with the applicant 's case because it would not have had any prospect of success .

The rules governing the exercise of the profession of a lawyer are set out in LAW ( Rechtsanwaltsordnung ) . Section CARDINAL of LAW , as amended in DATE ( LAW ) , provided a lawyer with a right to an old - age pension , or , under certain conditions , for a pension for his or her surviving spouse or descendants . The main principles for pension schemes for lawyers are set out in section CARDINAL(CARDINAL ) of LAW . According to these principles , only someone who is inscribed in the List of Lawyers of a regional ORG at the time that he or she reaches the retirement age is entitled to an old - age pension ; he or she must have been inscribed on the List for a period of DATE before reaching the retirement age ; the retirement age is fixed at DATE and upon reaching that age , a lawyer must renounce his or her right to exercise the profession . Further conditions are set out for pensions on account of incapacity to exercise the profession , widows ' or widowers ' pension and pensions for descendants . Under section ORG ) , the regional ORG are free to fix more favourable conditions for their own pension scheme .

The detailed regulations , as set out in the statues of the pension schemes ( ORG ) adopted by the plenary assembly of ORG , repeat the conditions under section CARDINAL(CARDINAL ) of LAW . ORG has not made use of the possibility under LAW ) to fix more favourable rules with the exception of fixing the retirement age at DATE .

NORP The pension scheme is financed by compulsory contributions from the members of the pension fund , the amount of which is fixed by the plenary assembly of ORG and roughly calculated on the basis of the payments to beneficiaries out of the pension fund .

NORP The fund has also another source of income . Under NORP Law , lawyers do not receive individual payments for services rendered in the context of legal aid . However , as a compensation for the services rendered by all lawyers , the ORG pays an DATE lump sum which is divided among the regional ORG and put into the pension funds .

For DATE the DATE contribution to the pension scheme were fixed at CARDINAL NORP schillings ( ORG , approximately ORG CARDINAL,CARDINAL ) per member and the old age pension at ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) payable CARDINAL times per year . For DATE the contributions were fixed at ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) , reduced contributions for members DATE at ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) and increased contributions for lawyers who were DATE when inscribed in the List of Lawyers for the first time at ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . Pension payments for DATE were fixed at ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) payable CARDINAL times per year . Pension payments were regularly increased over DATE and the amount fixed for DATE was ORG CARDINAL .

By a federal act of DATE ( ORG I no . CARDINAL/CARDINAL ) , which entered into force on DATE , the pension regime of lawyers was amended . The new system of old - age pensions , as provided for in sections DATE and CARDINAL of LAW , provides that being inscribed in the List of Lawyers at the time of reaching the retirement age is no longer a condition which must be met in order for an old - age pension to be granted . Old - age pensions are now also granted to persons formerly inscribed on the List of Lawyers and , provided that contributions have been made for a minimum time , they are calculated using a formula which takes into account the amount of contributions paid and the period during which they have been paid .

On DATE , in an extraordinary meeting , the plenary assembly of ORG amended the statutes of its pension scheme following the introduction of the above - mentioned rules .

Under the transitory provisions of section CARDINAL of the GPE statues of the pension scheme , the new provisions apply only to lawyers claiming an old - age pension whose right to exercise the profession had not been withdrawn before the amendment entered into force .


THE WALL STREET JOURNAL EUROPE SPRL v. THE UNITED KINGDOM

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The first applicant , ORG , is a corporation registered under NORP law which publishes a DATE newspaper in LOC , the “ ORG ” , which reports on developments in international business , politics and diplomacy . The second applicant , PERSON , is a GPE national who was the editor and associate publisher of the newspaper . He was born in DATE and lives in GPE . The third applicant , PERSON , is a NORP national who was born in DATE , is a journalist and lives in the GPE . The fourth applicant , PERSON , is a GPE national who was born in DATE , is a journalist and lives in GPE . The fifth applicant , PERSON GPE , is a GPE national who was born in DATE , is the Managing Director of the newspaper and lives in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE ORG ( “ WSJE ” ) published on its front page an article written by the third applicant and headed “ NORP officials monitor certain bank accounts ” with a smaller sub - heading stating “ focus is on those with potential terrorist ties ” . The article reported , contrary to various other publications , that ORG was in fact monitoring bank accounts associated with some prominent businessmen so as to prevent the funnelling of funds to terrorist organisations . It also stated that the monitoring had been requested by GPE law enforcement agencies .

The article attributed the information to GPE officials and NORP . A number of companies and individuals were named , including ORG . The applicants submitted that the story had emerged through investigative journalism in GPE , where access to information was particularly difficult for NORP newspapers . The third applicant was one of the very few LANGUAGE - speaking Western reporters who had been able to obtain a visa for GPE after the attacks in GPE of DATE . The third applicant ’s sources had been promised anonymity given that CARDINAL of them were resident in GPE , where the government would carry out brutal reprisals were they identified . The story was approved by senior staff in GPE , who had sought confirmation of it from their sources in ORG .

PERSON , who was head of a group of companies , and one of the corporate entities forming part of ORG , sued the ORG for libel . The PERSON denied that the article was defamatory . Given the importance of maintaining the confidentiality of its sources and the fact that evidence in support of the publication was inaccessible in GPE , the ORG did not seek to rely on the defence of justification in the proceedings .

On DATE PERSON made CARDINAL rulings as to the meaning of the words complained of and as to the admissibility and relevance of certain hearsay evidence . He concluded that the words complained of were not capable of bearing a lesser defamatory meaning than that of “ reasonable grounds to suspect ” the claimants of having terrorist ties and of funnelling funds to terrorist organisations . Moreover , he held that the claimants could submit evidence aiming to prove that the central allegation of the article was wrong . In an interlocutory appeal ORG accepted on DATE that the judge was correct in deciding that the evidence was properly adducible with regard to evaluating the plea of qualified privilege : undermining the correctness of the central allegation would make it more difficult for the jury to believe the journalists when they claimed that they were nevertheless clearly given this information . However , ORG accepted that the article was capable of having lesser defamatory meanings or a non - defamatory meaning .

The action was tried before a jury DATE . Counsel for each of the parties invited the judge to ask the jury what meaning the words in the article bore . The judge declined to do so . In his direction to the jury , he stated :

“ First , if you decide that it is defamatory of CARDINAL or both claimants , we must all proceed on the basis that any such defamatory allegation is untrue . ... The defendants would be entitled to prove the truth of the allegation they have made ... They have chosen not to do that in this case and , therefore , the claimants are entitled to that presumption of innocence . It is not for them to prove anything ... If it does reflect in any way in a defamatory sense upon either of them , and ... the article does in some way link CARDINAL or other or both of them to the funding of terrorism , then we accept , as an absolute fundamental assumption in this case , that such allegation is untrue . ”

On DATE the jury decided that the article was defamatory and that , subject to the judge ’s decision on qualified privilege , the appropriate sums to be awarded by way of damages were MONEY ( GBP ) to PERSON and GBP CARDINAL,CARDINAL to his company . They found that the newspaper had proved that the author had received the information he claimed from a NORP businessman , but had not proved that he had received confirmation from his other CARDINAL sources . The jury further found that the third applicant had telephoned the office of ORG on TIME of CARDINAL DATE and had spoken to a representative of the ORG who asked for publication to be postponed for TIME so that Mr. PERSON , who was in GPE for business , could be contacted but that the third applicant had declined the request .

On DATE PERSON rejected the ORG plea of qualified privilege . He gave his reasons for that ruling on DATE . He noted that “ ( t)here is a presumption that defamatory words are false , unless and until the relevant defendant proves them to be true . Here , because there is no plea of justification , the presumption will prevail . ” As to the meaning of the impugned words , the judge had regard to the ruling in the interlocutory proceedings as to the possible range of meanings , the jury ’s finding that the words were defamatory and the sums which the jury had specified as appropriate damages . He concluded that the words were defamatory in some sense and that at worst they suggested that there were “ reasonable grounds to suspect ” involvement in the funnelling of money to terrorists .

The judge found that the author could not have written the article in reliance on the claims of the NORP businessman alone . Further , there was no urgency that required the publication to be made before PERSON had been given a reasonable opportunity to comment on the matters alleged and it would have been sufficient not to name him and his company since it would be contrary to the public interest to publish the names of those being monitored .

On DATE ORG upheld the trial judge ’s decision but on a more limited ground : that the newspaper had failed to delay publication of the claimants’ names to give them time to comment . The renewed application for leave to appeal concerning the presumption of falsity was rejected . While a defendant who wished to rely on the defence of qualified privilege under PERSON v. ORG ( [ DATE ] CARDINAL AC CARDINAL ) , might have to prove that it was reasonable for him to believe that a defamatory article was true , the applicants had implicitly accepted that if the article proved to have a defamatory meaning , they had no belief that it was true . As to the contention that the common law presumption of falsity infringed Articles CARDINAL and CARDINAL of the LAW , the court noted that it was too late for the applicants to raise this point as the parties had conducted the case on the premise that any defamatory meaning that the article bore was presumed to be untrue unless the publishers pleaded and proved justification . Accordingly , permission to advance this ground of appeal was also refused . With regard to the application of the presumption of falsity in the judge ’s direction to the jury , the court noted the following :

“ we do not consider that it was appropriate for the jury to apply the presumption of falsity when considering the issues of fact that were relevant to PERSON privilege . When considering whether PERSON privilege attaches to the publication of a potentially defamatory article it is necessary to decide whether the publishers acted as ‘ responsible PERSON in publishing the article . This question has to be addressed having regard to the position as it should have appeared to those responsible for the publication at the time of publication . Whether or not the article was true is not normally relevant to this question- see PERSON v. PERSON [ DATE ] . What has to be considered is whether it was responsible to publish the article having regard to the risk that the defamatory imputation in the article might prove to be untrue ... It does not seem to us right that the jury should apply a presumption that the article was false ” .

However , counsel for the applicants had not objected to the judge ’s direction to the jury and had failed to raise this issue at the trial . In any event , the trial judge found the publishers’ conduct wanting in respect of each of the points of guidance set out in ORG ( cited above ) , and concluded that it was not in the public interest to publish the names of those subjected to monitoring and that the author was at fault in not permitting the claimants to comment . Accordingly , leave to appeal on this ground was also refused .

Lastly , as to the judge ’s failure to obtain from the jury an indication on the meaning they attached to the article , it was noted that :

“ The only issue is whether he should have required the jury to define precisely the gravity of the defamatory meaning of the article . It seems to us that the choice was between “ reasonable grounds to suspect ” and “ grounds for investigating ” . The difference between the CARDINAL can be a narrow one . Had the issue of PERSON been likely to turn on whether the words bore the more or the less serious meaning , it might have been necessary to invite the jury to choose between the CARDINAL . But the judge plainly did not consider that the precise nature of the defamatory sting was capable of affecting the outcome . We share that view . ”

On DATE leave to appeal to ORG was granted in respect of the scope of the PERSON defence of qualified privilege and the presumption of damage which allowed recovery of damages by the plaintiff corporation without proof of specific losses . Leave to appeal on the jury reasons issue was refused . On DATE the appeal was unanimously allowed by ORG on the scope of the PERSON privilege and the claimant ’s action was dismissed ( Lord PERSON , Lord PERSON , Lord Hope , Lord PERSON and ORG ) . The principal issue for determination by ORG was whether the newspaper had been entitled to the defence of publication in the public interest established in ORG ( cited above ) .

Lord PERSON of PERSON noted that a publisher is protected by qualified privilege if he has taken such steps as a responsible journalist would take to try and ensure that what was published was accurate and fit for publication . He found that ORG ruling “ subverts the liberalising intention of the PERSON decision . ” The subject matter of the article was of great public interest , written by an experienced specialist reporter and approved by senior staff who themselves sought to verify its contents . The article was unsensational in tone and factual in content . The PERSON response was sought and the paper ’s inability to obtain a comment recorded . It was very unlikely that a comment would have been revealing . Overall , he concluded that “ it might be thought that this was the sort of neutral , investigative journalism which PERSON privilege exists to protect . ”

Lord PERSON also considered that the trial judge and ORG had given the PERSON defence “ too narrow a scope ” . He observed that it was the material which was privileged and not the occasion on which it was published while the burden was upon the defendant to prove that the conditions under which the material was privileged were satisfied . The trial judge had misdirected the jury when he requested them to find whether the author ’s sources had indeed confirmed the reported facts bearing in mind that the reported facts had been known to be untrue . He noted that :

“ The fact that the defamatory statement is not established at the trial to have been true is not relevant to the PERSON defence . It is a neutral circumstance . The elements of that defence are the public interest of the material and the conduct of the journalists at the time . In most cases the PERSON defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true but there are cases ( ‘ reportage’ ) in which the public interest lies simply in the fact that the statement was made , when it may be clear that the publisher does not subscribe to any belief in its truth . In either case , the defence is not affected by the newspaper ’s inability to prove the truth of the statement at the trial . ”

Applying the criteria set out in Lord Nicholls’ speech in PERSON , he concluded that the article “ was a serious contribution in measured tone to a subject of very considerable importance ” , the inclusion of the defamatory statements – the names of large and respectable NORP businesses DATE was an important part of the story showing that ORG request extended to the heartland of the NORP business world , and the applicants had behaved “ fairly and responsibly in gathering and publishing the information ” in compliance with the “ responsible journalism ” test . As to the applicants’ refusal to delay publication Lord PERSON noted that the delay would not have made a difference to the article : in the circumstances Mr PERSON would have been asked whether he knew of any reason why anyone would want to monitor his account and the answer would most likely have been in the negative . Failure to wait was not enough to deprive the newspaper of the defence that they were reporting on a matter of public interest . Hence , there was no basis for rejecting the newspaper ’s PERSON defence .

ORG of GPE concluded that “ if the public interest defence does not succeed on the known facts of this case , it is hard to see it ever succeeding ” .