Violation of Art. 6-1;Violation of Art. 10;Pecuniary and non-pecuniary damage - finding of violation sufficient

Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto

NORP The applicant company , a public broadcasting corporation serving ORG in GPE , produced a long - running DATE news and investigation programme called Au nom de la loi ( “ In the name of the law ” ) , focusing in particular on legal matters in the broad sense of the term . The programme was described as follows on the PERSON website :

“ Right from the start , Au nom de la loi sought to operate on the basis of CARDINAL main principles : standing up for the underdog , so that ordinary citizens were always given a say , and looking for the hidden agenda , so that its journalists’ investigative skills came to the fore . ”

In DATE PERSON , a specialist neurosurgeon , ran a neurosurgery practice together with a colleague , including an on - call service at ORG . A number of NORP newspapers , both regional ( ORG in DATE and DATE ) and national ( ORG in DATE and La Dernière Heure in CARDINAL articles DATE ) , reported on complaints by various patients who had been operated on by PERSON CARDINAL of the articles mentioned his name . According to information provided by the parties , none of the articles prompted any reaction on the doctor ’s part .

NORP The applicant company subsequently decided to devote a segment of its programme Au nom de la loi to medical risks and , more generally , communication and information problems encountered by patients and the rights available to them , using as an example the complaints by PERSON patients as reported in the press .

While preparing the programme , journalists from the applicant company contacted a number of patients , medical specialists , representatives of ORG ) and PERSON himself . The doctor refused to give a televised interview but agreed to answer questions from the applicant company ’s journalists during a series of meetings lasting TIME , in the presence of his lawyers . The programme was scheduled to be broadcast on DATE .

By a summons served on DATE , PERSON instituted proceedings against the applicant company before the President of ORG , as the judge responsible for hearing urgent applications . He sought an injunction preventing the broadcast of the programme in question , with a penalty of MONEY each time it was shown on a television channel . In the alternative , should the injunction not be granted immediately , he sought an order requiring a videotape of the programme to be made available for advance viewing .

On DATE the President of ORG granted an interim injunction preventing the programme in question from being broadcast , with a penalty of MONEY each time it was shown on a NORP television channel ; the injunction was to remain in place until a decision was given on the merits , provided that the claimant himself instituted proceedings on the merits within DATE of the injunction , failing which it would cease to have effect .

The injunction stated that there was no cause , on the face of it , to doubt the good faith and professionalism of the applicant company ’s journalists or the objective nature of their investigations , and that the claimant had a number of remedies by which to seek redress ex post facto for the damage sustained . It concluded that an application for prior restraint should not be granted unless it was established with certainty that the scheduled broadcast would damage the claimant ’s honour and reputation .

The injunction noted that it was not disputed that the complaints of the patients whom the applicant company intended to feature in the programme had yet to be considered by any court . As matters stood , no judicial proceedings had even been brought in respect of most of the complaints . Furthermore , professional confidentiality , which PERSON had cited as his reason for refusing an interview , meant that he would be unable to give adequate answers , and his silence would at the very least raise doubts among the public as to his professional ability .

The injunction further pointed out that neurosurgery and the post - operative complications to which it might lead were complex matters and that , as a result , regard should be had to the difficulty in conveying an understanding of the subject to a non - specialist audience in a feature lasting TIME .

The court did not view the programme before giving its ruling . Dr PERSON had requested that a videotape of the programme be made available for viewing by the court ’s President , but the applicant company , in both its written and oral submissions , refused to accede to the request .

Dr PERSON arranged for the injunction of DATE to be served DATE at TIME

In the event , the programme was not in fact cancelled , but the feature on the alleged medical errors by PERSON was replaced by a discussion between a journalist and the programme ’s producer . During the discussion and the preceding news broadcast , the applicant company commented at length on the injunction of DATE , describing it as judicial censorship of press freedom . PERSON name was mentioned several times . On DATE PERSON requested a right of reply , but the applicant company refused his request in a registered letter of DATE .

On DATE the applicant company appealed to ORG against the injunction .

On DATE PERSON instituted proceedings on the merits against the applicant company in ORG , concerning the same subject matter as his urgent application . At the preliminary hearing the case was adjourned until further notice with a view to its preparation . By DATE on which the application was lodged with the ORG , the proceedings were still pending .

In an interlocutory judgment of DATE , ORG , ruling on the appeal against the injunction , held that LAW was not applicable in the case as it related only to the print media and not the audio - visual media , and that neither LAW nor LAW prohibited restrictions on the exercise of freedom of expression , provided that they had a basis in law . It observed that LAW , which guaranteed the right to respect for private life , together with ORG CARDINAL and CARDINAL of the Judicial Code , constituted the law in this regard and empowered the urgent - applications judge to order restrictions on freedom of expression as a preventive measure in “ cases of flagrant violations of the rights of others ” . In the present case the press release announcing the programme had given reason to believe that the broadcast might damage PERSON honour and reputation and interfere with his private life .

ORG also ordered the resumption of the proceedings and directed the applicant company to produce the recording of the programme in issue .

It noted in that connection that “ since prior restraints on freedom of expression entail considerable dangers , intervention by the urgent - applications judge will have ... democratic legitimacy only if it is limited to cases of flagrant violations of the rights of others ” , and held that the way in which the applicant company had “ announced and described the programme in question indicated its intention to cause unnecessary harm to the honour , reputation and private life of [ the respondent ] through public disclosure of information that was inaccurate , unverified or lacking in objectivity ” .

A screening of the programme took place at a hearing on DATE . Besides the extracts from interviews with CARDINAL patients who considered that they had reason to complain about PERSON , the programme comprised : an interview with a medical specialist , who explained the medical problem encountered and the anomalies found in the ORG medical records ; PERSON replies to these comments ; extracts from interviews with specialists ( a doctor belonging to ORG , a lawyer specialising in medical law , and a ORG official ) ; and , lastly , footage of a neurosurgical operation , with comments by another doctor .

In a second judgment , delivered on DATE , ORG declared the applicant company ’s appeal unfounded . It held that broadcasting the scheduled programme would be likely to damage Dr PERSON ’s honour and reputation , thereby causing him serious non - pecuniary harm and , as a result , significant pecuniary loss . It concluded that the preventive measure of a ban had met a pressing social need , had been proportionate to the legitimate aim pursued and had been based on relevant and sufficient grounds .

More specifically , ORG observed that the programme included footage of a series of interviews with patients on whom PERSON had performed surgery , involving a total of CARDINAL operations . The interviews were interspersed with explanatory comments : PERSON discussed the specific cases , the journalist who had spoken to PERSON conveyed the answers he had received from him , a ORG representative discussed patients’ rights and the difficulties faced by doctors working at several different sites in remaining available to see them , a lawyer explained GPE legal rights , and a senior adviser to ORG outlined the legislative initiatives being taken to ensure better protection for patients .

ORG considered that the part of the programme concerning the CARDINAL operations and their consequences was significantly more important than the part informing the audience about patients’ rights vis - à - vis their doctor . It took the view that the clarification provided by the journalist during the programme , namely “ [ s]o , was there a medical error or not ? ... We can only ask the question ; we can not give the answer ” , was unlikely to draw the audience ’s attention to the fact that there was no conclusive proof of a medical error . It further noted that there had been no mention of the experience of satisfied patients , and that there was no evidence that the CARDINAL situations discussed were representative of the experiences of PERSON patients as a whole . It observed that the applicant company had not referred to any other “ serious ” complaint registered by ORG ) , and held that the CARDINAL experiences perceived as failures by the patients did not represent a sufficient number to justify targeting PERSON in a programme relating to patients’ rights in the event of medical errors or negligence . This number appeared all the more insufficient as CARDINAL lawsuit had been brought against the doctor concerned . In addition , ORG noted that the operations referred to had been very different in nature , so that it was unreasonable to consider them all together , causing the audience to think that they revealed a common pattern of malpractice , which the average viewer , not being aware of the complexity of each individual case , might have tended to do .

Lastly , ORG acknowledged that the programme in issue raised serious matters of public concern since it discussed the rights which patients could assert vis - à - vis their doctor , and since there was nothing to suggest that the interviewees had not given an accurate account of their own experiences . However , it considered that the applicant company had lacked objectivity and had not taken into account the manner in which the average viewer was likely to perceive the information , and concluded that the applicant company could not rely on freedom of the press in arguing that the surgery performed by PERSON deserved to be brought to the public ’s attention for consumer - protection purposes by giving dissatisfied patients the opportunity to air their views in a programme concerning ORG rights . In particular , it stated the following :

“ While it is clear that the programme in issue raises serious matters of public concern since it discusses the rights which patients may assert vis - à - vis their doctor , complaints by patients concerning the quality of treatment provided by a particular surgeon can not be of interest to the community as a whole unless it can be established with sufficient certainty from the evidence available that the activities of the doctor in question entail serious health consequences .

Quite apart from the fact that there do not , on the face of it , appear to be a significant number of complaints against [ Dr PERSON ] , it has not been established that they are legitimate .

There is nothing in the material produced to date by ORG to support the conclusion that the interviewees have reasonable grounds to believe that they were not given the necessary or appropriate treatment , or that their accounts correspond to the objective truth ; this is not disputed by PERSON .

The brief report by the medical adviser on the complaints submitted to ORG , which contains more questions than answers , can not serve as proof .

No other investigative measures appear to have been taken or to have produced results .

Although there is nothing to suggest that the interviewees did not give an accurate account of their own experiences as perceived by them , the credibility that can be attached to the ORG or their relatives’ accounts is not sufficient , in the absence of conclusive evidence of medical errors or negligence , to justify putting these complaints together to form the main theme of a programme that places [ PERSON ] in the spotlight and accuses him of professional incompetence and negligence in all respects of his practice ( pre - operative counselling , quality of the operation , post - operative follow - up ) .

It should also be noted that the programme lacks objectivity in that the journalist ’s comments are systematically aimed at reinforcing or provoking criticism of [ Dr PERSON ] .

Public confidence in a doctor ’s ability can be destroyed by a television programme that conveys the experiences of a few of his patients or their relatives where , as in the present case , all the experiences reported on are perceived negatively , the opinions expressed during the programme by medical specialists suggest that the surgery performed was unnecessary or inappropriate , there is no coverage of the experiences of satisfied patients and no mention of whether the surgery was of a delicate or routine nature , the degree of risk each operation entailed and the number of operations carried out by the doctor during the relevant period , and no information is provided as to the average failure rates of the types of surgery concerned .

The damage that could potentially be caused by broadcasting the programme would be exacerbated by the fact that the programme is broadcast during prime time , it ... enjoys a serious reputation and , as a result , the audience will naturally be inclined to believe not only that the interviewees have objective reasons to complain about [ Dr PERSON ] but also that they represent a significant sample of his patients . ”

On DATE the applicant company appealed on points of law against the CARDINAL judgments of ORG . It alleged a violation of ORG CARDINAL , CARDINAL of the Convention and Articles DATE , DATE and DATE of the LAW .

In its first ground of appeal it contended that the judgment appealed against , in finding that the first paragraph of LAW did not apply to television programmes , had breached the provision in question . It submitted that at a time when radio and television reached a much wider audience than the print media , excluding the former from the scope of LAW amounted to depriving that Article of its essential element , namely protection of the freedom to impart ideas as opposed to the instrument used for that purpose . It added that , while it was true that freedom to express opinions was not absolute , it could not be subject to prior restraints but only to punitive measures . There should at the very least have been an opportunity to express the opinion , as the actual wording of LAW indicated ( “ when this freedom is used ” ) . The applicant company inferred from this that LAW did not allow the authorities to subject the free expression of opinions on any subject to prior scrutiny , or to prohibit the broadcast of a television programme in advance .

The applicant company submitted a second ground of appeal in the alternative , should it be found that LAW did not prohibit all prior restraints on the exercise of freedom of expression and that LAW paragraph , LAW paragraph , and ORG and CARDINAL of the Judicial Code , read in conjunction with LAW , constituted a “ law ” within the meaning of LAW . It argued that although LAW did not guarantee unrestricted freedom of expression , even with regard to media coverage of matters of serious public concern , and although the exercise of that freedom carried with it duties and responsibilities which were also applicable to the press and were liable to assume significance when there was a risk of undermining the reputation of private individuals or the rights of others , the mere interest – albeit undeniable – of the respondent in protecting his honour and professional reputation was not sufficient to prevail over the important public interest in preserving the freedom of the press to impart information on matters of legitimate public concern .

In his submissions , the Advocate - General recommended that ORG judgments be quashed . Following a thorough analysis of the case - law of ORG , the ORG d’Etat and ORG ( ORG ) , he submitted that LAW guaranteed freedom of expression in general , which could not be hindered by prior censorship . He nevertheless pointed out that such freedom was not absolute and could be limited by general restrictions prescribed by law , provided that the imperative requirements of LAW were satisfied . However , the wording of that Article made it impossible in his view to prohibit the dissemination of information on the basis of prior scrutiny , as such a measure would impair the very essence of freedom of expression . The Advocate - General observed that , in the particular context of freedom of expression , the courts’ powers were limited by observance of LAW , which prohibited any preventive measure entailing prior restrictions on freedom of expression .

Nevertheless , the Advocate - General added that since freedom of expression was not an absolute right , it could not prevail over or negate respect for the other rights and freedoms safeguarded by the LAW and international instruments . He noted in that connection that prior restrictions of a general nature could be framed in law , provided that they satisfied the requirements set forth in LAW . Lastly , he expressed the view that ORG and DATE of LAW and ORG DATE , CARDINAL and CARDINAL of the Judicial Code satisfied the accessibility and foreseeability requirements laid down by the ORG .

In a judgment of DATE , ORG dismissed the appeal on points of law .

Firstly , it upheld ORG judgment as regards the inapplicability of LAW , finding that television programmes were not forms of expression by means of printed matter . It held that the requirement for the applicant company to produce the recording of the programme in issue did not breach LAW since the urgent - applications judge had provisionally postponed the broadcast of the programme in order to ensure effective protection of the honour , reputation and private life of others . It further held that LAW and CARDINAL of the LAW , Articles CARDINAL and CARDINAL of the Convention and Articles CARDINAL and CARDINAL of the Judicial Code , which it had interpreted consistently , allowed the restrictions provided for in LAW and were sufficiently precise to enable anyone , if need be with appropriate legal advice , to foresee the legal consequences of his or her acts .

NORP In particular , ORG held as follows :

“ Under LAW , the judiciary is competent both to prevent and to redress unlawful infringements of civil rights .

Similarly , the judge dealing with urgent applications , as in the present case , is empowered under Articles CARDINAL and CARDINAL of the Judicial Code to take any provisional measures in respect of the person responsible for such an infringement that may be necessary to protect personal rights if there are prima facie legal grounds for doing so .

In particular , where there is a serious threat of a violation of a right , the urgent - applications judge is authorised by LAW to order measures aimed at preventing such a violation . ”

Secondly , ORG held as follows in relation to the objection that the applicant company ’s second ground of appeal was inadmissible in that it had failed to allege a violation of LAW :

“ In upholding the respondent ’s claim , the impugned judgment of DATE finds that the respondent ‘ has made out ... a sufficient prima facie case for obtaining an interim injunction prohibiting the broadcast of the programme in issue , which clearly and needlessly undermines his honour and reputation’ .

The urgent - applications judge may order interim measures if there are prima facie legal grounds for doing so .

In merely examining the parties’ prima facie rights without applying legal rules that could not form a reasonable basis for the interim measures ordered by him , the judge has not overstepped the limits of his powers .

The appellant can not challenge ORG provisional assessment unless it alleges a violation of LAW , which it has not done . ”

Articles DATE , DATE , DATE ( former LAW ) and CARDINAL of the LAW are worded as follows :

“ Freedom of worship , its public practice and freedom to manifest one ’s opinions on all matters are guaranteed , but offences committed when this freedom is used may be punished . ”

“ Everyone has the right to respect for his private and family life , except in the cases and conditions provided for by law . ... ”

“ The press is free ; censorship can never be introduced ; no payment of security can be demanded of authors , publishers or printers .

Where the author is known and resident in GPE , neither the publisher , nor the printer nor the distributor may be prosecuted . ”

“ Disputes about civil rights fall exclusively within the competence of the courts . ”

The relevant provisions of LAW are worded as follows :

“ Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for the damage he has caused not only by his own acts , but also by his negligence or carelessness . ”

Articles DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Judicial Code provide as follows :

“ The interest in bringing an action must be vested and present .

An action may be allowed where it has been brought , even for declaratory purposes , with a view to preventing a violation of a right that is seriously threatened . ”

“ A judgment is final when it exhausts the jurisdiction of the court in respect of a question in dispute , save for appeals provided for by law .

The judge may , before passing judgment , order a preliminary measure aimed at investigating the application or settling the parties’ situation on an interim basis . ”

“ The President of ORG shall , in respect of all matters except those which the law excludes from the jurisdiction of the courts of justice , give a provisional ruling in cases which he recognises as being urgent .

The matter shall be brought before the President by means of an urgent application or , in cases of absolute necessity , an ex parte application .

He may , among other things :

( CARDINAL ) NORP appoint administrators ;

( CARDINAL ) NORP order certificates or expert reports for any purpose , even including the assessment of damage and the investigation of its causes ;

( CARDINAL ) NORP order any measures that are necessary for the protection of the rights of those who are unable to ensure such protection themselves , including the sale of movable property that has been neglected or abandoned ;

( CARDINAL ) NORP order the examination of one or more witnesses where one of the parties can show that this is of prima facie interest , even with a view to future litigation , provided that it is established that any delay in the hearing will necessarily prompt concerns that it will not be possible to take the evidence at a later stage . ”

“ Orders for interim measures shall be made without prejudice to the merits . They shall be enforceable immediately , notwithstanding an application to set aside or an appeal , and without payment of a security , if the court has not ordered such payment .

If a party not appearing in court applies to have the order set aside , it shall not be entitled to appeal against the order made in absentia . ”

“ The appeal on points of law , of which both the original and a copy must be signed by a lawyer authorised to practise in ORG , shall include the appellant ’s grounds of appeal and submissions , together with an indication of the statutory provisions alleged to have been breached ; failure to include any of the above shall render the appeal null and void . ”

In a judgment of CARDINAL DATE , ORG held :

“ Neither television programmes nor cable broadcasts are forms of expression by means of printed matter ... LAW [ current LAW ] is therefore inapplicable to them . ”

NORP The judgment further stated :

“ Although LAW [ current LAW , like LAW [ of the LAW ] , guarantees freedom to manifest one ’s opinions on any subject and accordingly does not allow the authorities to make the exercise of these freedoms subject to prior scrutiny of the opinions in question , these provisions nevertheless do not safeguard this freedom to an unlimited extent and , in particular , do not preclude the regulation , or prohibition , of commercial advertising in cable television broadcasts , where such regulation or prohibition is compatible with the requirements of supranational law .

There is no basis in law for the ground of appeal to the effect that Articles [ CARDINAL ] and [ CARDINAL ] of the LAW prohibit all censorship , prior authorisation or advance prohibition of the expression of a particular opinion and its dissemination by any means whatsoever ( LAW ) or , more specifically , through the press ( LAW ] of LAW ) . ”

In a judgment of DATE , ORG ruled on the power of the ordinary courts to prevent , restrict or regulate the distribution of press publications . It held that this power was , in principle , acceptable on the basis of LAW , Articles CARDINAL and CARDINAL of the Judicial Code and LAW . In the case before it , the urgent - applications judge had issued an injunction DATE subsequently upheld both on an application by a third party to set it aside and on appeal – ordering the withdrawal from sale of all copies of the DATE magazine ORG which had published notes confiscated from a judge by the chairman of a parliamentary commission of inquiry on child disappearances ; ORG held that this did not amount to censorship because the publication had already been in circulation .

In an order of CARDINAL DATE , the President of ORG held that “ where individual freedoms are concerned , in particular freedom of expression , prohibition of all preventive measures is the rule . Accordingly , the application for an injunction banning , postponing or altering a broadcast is unfounded ” . That approach was confirmed in an order made by the same judge on DATE .

DATE , in an order of QUANTITY DATE , while not expressly referring to LAW , the President of ORG relied on LAW to justify prohibiting part of a programme from being broadcast .

On DATE an ex parte injunction prohibited a broadcast without giving any further details as to the legal basis for that decision . In an order of CARDINAL DATE the GPE urgent - applications judge dismissed an application for an injunction banning a book , relying in particular on Articles DATE and CARDINAL of the LAW while also noting that , depending on the circumstances , he would be entitled under LAW to take the necessary steps to prevent any irreparable damage . DATE , in an order of DATE , the urgent - applications judge held that LAW in itself constituted a “ law ” within the meaning of LAW . Conversely , in an order of CARDINAL DATE he held that there was no basis in NORP law , as it currently stood , for the judiciary to take preventive measures restricting freedom of expression .

In an order of CARDINAL DATE , while acknowledging that “ it is true that no preventive measures as such exist in NORP law in this sphere ” ( television ) , the urgent - applications judge nevertheless held again that LAW formed a sufficient basis for preventive intervention on his part . Conversely , in an order of DATE the urgent - applications judge of ORG held that , in accordance with LAW , the NORP legal system prohibited prior restraints .

However , DATE , on DATE , the same urgent - applications division ordered restrictions on a broadcast as a preventive measure .

On DATE the urgent - applications judge held that LAW and LAW , read in conjunction , formed a sufficiently precise legal basis for the purposes of LAW . On DATE the President of ORG issued an ex parte injunction prohibiting a broadcast on the basis of LAW .

DATE , in an order of DATE , the President of ORG held , in complete contradiction to his previous decisions , that “ as rightly argued by the defendant , LAW is a general provision conferring jurisdiction ” , which could not justify empowering the urgent - applications judge to take the measure sought , and that “ the applicant is mistaken in basing ... the application on LAW , which concerns redress for existing damage ” . He nevertheless considered that NORP law did indeed contain a “ law ” within the meaning of LAW , namely “ the other individual rights and freedoms protected by law ” . In an order of CARDINAL DATE the same judge confirmed his previous decision , while taking care once again to point out that “ it is true that , as regards restrictions on freedom of expression , NORP law provides only for measures entailing retrospective sanctions ” .

DATE , on DATE , the urgent - applications judge found that LAW , “ by way of exception ” , constituted the “ law ” within the meaning of LAW .

DATE , on DATE , the same judge held that “ on account of the balance to be struck between respect for freedom of expression and respect for the other individual rights and freedoms protected by the law ( in the broadest sense ) , these other rights and freedoms , being enshrined in ‘ law’ , could be taken to be accessible to the citizens concerned by them and framed in precise terms , and their safeguarding and hence protection could be deemed to constitute restrictions prescribed by law within the meaning of LAW [ of the LAW ] ” . He pointed out that LAW and section CARDINAL of LAW of DATE were all “ laws ” for the purposes of LAW .

However , DATE , in an order of DATE on an ex parte application , the President of ORG held , on the basis of Articles DATE and CARDINAL of the LAW , that the courts were precluded from taking any preventive measures in matters concerning freedom of expression . A fortnight later , on DATE , the urgent - applications judge , while expressly ruling out the application of LAW , held that he was entitled to take preventive measures under LAW and LAW , which together constituted the “ law ” within the meaning of LAW . In an order of DATE he confirmed that position and again justified his power to intervene on a preventive basis under LAW and LAW .

DATE , in an order of DATE , the same judge relied on the CARDINAL above - mentioned provisions , but nevertheless added that regard should also be had to the right to protection of one ’s image , as established by the courts , and to LAW as to the means of exercising that right .

In the meantime , in an order of DATE , the urgent - applications judge had stated that where there was a risk of a flagrant breach of fundamental rights , there was nothing to prevent the urgent - applications judge from taking interim measures . However , in an order of CARDINAL DATE , the same urgent - applications division ruled that an application for an injunction prohibiting the publication of information from an ongoing criminal investigation was at variance with LAW and declared it unfounded .

In a judgment of DATE , ORG held that “ the law is formed by a combined reading of LAW ( which is a law conferring jurisdiction rather than a substantive law for the purposes of LAW , which provides that everyone has the right to respect for his private and family life , his home and his correspondence ” . After noting that “ on several occasions ... the urgent - applications judge has held that NORP domestic legislation did indeed contain a ‘ law’ allowing freedom of expression to be restricted for the purposes of LAW [ of the LAW ” , it nevertheless acknowledged that “ the reasoning in decisions supporting intervention by the urgent - applications judge is not unequivocal as regards the provisions constituting the law ” .

In an order of CARDINAL DATE , the urgent - applications judge developed this argument further , holding that “ intervention by the urgent - applications judge as a preventive measure ... is possible under LAW ( a rule of jurisdiction empowering him to intervene in any matter ) , in conjunction with the provisions relating to the rights and freedoms which would be infringed as a result of freedom of expression , such as , in this instance , LAW , LAW ... [ and ] the right to protection of one ’s image ” .

In an order of CARDINAL DATE , the GPE urgent - applications judge dismissed an application for an injunction banning a book , although neither the parties nor the judge took LAW into consideration .

In an order of DATE , the urgent - applications judge observed that LAW prohibited any prior restraints on freedom of expression , including in audio - visual matters . Lastly , in an order of DATE , the GPE urgent - applications judge ruled that LAW , which prohibits censorship , was also applicable to the audio - visual media and therefore precluded the courts from taking any kind of preventive measures restricting freedom of expression .

In a judgment delivered on DATE in the case of ORG v. PERSON and Others , ORG explicitly accepted that LAW was in principle applicable to proceedings concerning urgent applications heard by the President of ORG in accordance with LAW . In a second judgment delivered on DATE , ORG did not give an explicit ruling on this issue but nevertheless did not declare a ground of appeal alleging a violation of LAW inadmissible on this account .

In a judgment of CARDINAL DATE , the PERSON d’Etat held that ORG DATE and CARDINAL of the LAW prohibited any prior scrutiny of the use of freedom of expression and freedom of the press . The judgment stated as follows :

“ The provisions of the LAW relied on by the applicant [ Articles DATE and CARDINAL ] do not preclude the punishment of press offences or offences committed in connection with the use of freedom of expression . They do , however , prohibit prior scrutiny of the use of these freedoms ; in other words ... where printed matter can not be distributed or opinions expressed until a public authority or other third party has determined whether they are lawful .

In the instant case , ORG does in fact reserve the right to examine the content of certain forms of election material from the standpoint of LAW and to refuse to distribute them where it concludes that there has been an offence , whether or not it has sought the opinion of ORG . It therefore carries out prior censorship . Freedom of the press and freedom of expression are devoid of meaning unless they are accompanied by the possibility of distributing printed matter or imparting opinions . ”

The Administrative Jurisdiction and Procedure Court

In a judgment of DATE on an application to set aside certain provisions of LAW of DATE , ORG DATE which became ORG on DATE held that the prohibition of preventive measures in general and of censorship in particular meant that intervention by the courts in banning the distribution of a publication was possible only where distribution had already begun . It considered that in such cases , the court should ascertain whether the restriction of freedom of expression that might result from the application of section CARDINAL(CARDINAL ) of the LAW of DATE was necessary in the specific circumstances , whether it met a pressing social need and whether it was proportionate to the aim pursued by that provision . In accordance with section CARDINAL(CARDINAL ) of the Act in question , restrictions could therefore not be imposed on the right of citizens to express their opinions , even in the polemical tone that could typify public debate on social phenomena , and even where such opinions offended , shocked or disturbed the ORG or any sector of the population .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He was not legally represented in the proceedings before the ORG . The respondent Government were represented by their Agent , PERSON , of ORG .

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

On DATE ORG ( Prokurator Wojewódzki ) charged the applicant with drug smuggling and detained him on remand in view of the reasonable suspicion that he had committed the offence in question , the serious nature of that offence and the risk that he might obstruct the proper conduct of the proceedings . On DATE , the applicant ’s wife was charged with a similar offence and detained on remand .

The applicant , in his written observations , submitted that , upon their detention , the authorities had ordered them to surrender their passports . The Government have not contested that fact .

Subsequently , on several occasions , the applicant asked the prosecutor to release him on bail , but all his applications were to no avail .

On DATE , on an application by ORG , ORG ( PERSON ) prolonged the applicant ’s detention on remand until DATE . The court held that there was a reasonable suspicion that the applicant had committed the serious offence with which he had been charged . It considered that the need to confront suspects with each other , to obtain evidence from abroad and expert evidence justified the prolongation of his detention in order to ensure the proper course of the investigation . ORG ( FAC ) upheld this decision and the reasons therefor on DATE .

On DATE the applicant ’s counsel asked the prosecutor to order that the applicant be examined by a cardiologist and a psychiatrist . According to a medical report , which was submitted to the prosecutor on CARDINAL October CARDINAL , the applicant ’s health was not an obstacle to holding him in detention .

On DATE the applicant ’s wife was released from detention on health grounds .

On DATE , on a subsequent application by ORG , the ORG prolonged the applicant ’s detention until DATE , repeating the reasons already invoked in the decision of CARDINAL DATE . ORG upheld that decision on DATE .

On DATE the applicant ’s counsel informed the prosecutor that his client ’s health was very bad and that , in particular , he had lost consciousness during one of their meetings in prison . It was , he added , not a single instance of fainting as the applicant had already several times had similar attacks . He asked the prosecutor to release the applicant immediately .

The prosecution first asked the prison authorities to provide them with an updated report on the applicant ’s health . According to that report , which was received on DATE , the applicant had only once informed prison doctors of having lost consciousness . Doctors did not consider that the applicant ’s condition militated against keeping him in custody .

Meanwhile , on DATE , the applicant had filed an application for release on bail with ORG and offered a security in the form of his movable and immovable property . The application was dismissed by ORG on DATE and , on appeal , by ORG ( Prokurator Apelacyjny ) on DATE . In those decisions the prosecutors referred to the need to ensure the proper conduct of the proceedings and considered that the applicant ’s detention should continue until DATE the investigation , especially as the applicant had not confessed .

On DATE ORG laid further charges against the applicant .

On DATE the prosecution lodged a bill of indictment with ORG . The applicant was indicted on a charge of having smuggled not QUANTITY of heroine . The bill of indictment comprised CARDINAL charges against CARDINAL co - accused .

In DATE the applicant made CARDINAL applications for release on health grounds . He complained about frequent headaches and states of unconsciousness , insomnia and heart - burning sensation . He also referred to his difficult family situation and , in particular , to the bad health of his wife , who was suffering from depressive neurosis and chronic gastritis . He produced the relevant medical certificates .

On DATE ORG refused to release him . It considered that there was a sufficient likelihood that the applicant had committed the offence with which he had been charged . It also held that his detention should continue in view of the need to ensure the proper conduct of the trial . The court did not find that the situation of the applicant ’s family was so serious as to justify his release on the grounds specified in LAW .

On DATE the applicant filed a subsequent request for release . Later , in DATE , he made several fresh , similar applications . He stressed that he had already spent DATE in detention . He referred to his own and his wife ’s bad health , maintaining that she urgently needed help and support from him . He produced several medical and other certificates relating to her health and family situation .

In DATE , ORG ordered that further evidence concerning the applicant ’s and his wife ’s health and their family situation be obtained .

On DATE , the applicant produced further documents .

On DATE the court rejected all the applications . It held that there was a sufficient appearance of likelihood that he had committed the offence in question . It further considered that that offence represented a serious danger to society and that , accordingly , there was a need to ensure the proper course of the trial . Referring to the applicant ’s health , the court observed that the applicant was suffering only from neurosis , which was not in itself an obstacle to his continued detention . As regards his family situation , the court pointed out that other members of their family could provide his wife with the necessary care and assistance .

ORG upheld that decision on DATE . It found that the charge against the applicant was sufficiently confirmed by evidence heard before the trial court . It also considered that the character of the offence , the complicated process of obtaining evidence and the stage of the proceedings indicated that holding the applicant in custody was necessary to secure the proper conduct of the trial .

In the meantime , on DATE , ORG had rejected the applicant ’s other applications for release , which he had filed on DATE and CARDINAL DATE . This decision was then upheld on appeal on CARDINAL DATE . The courts relied on CARDINAL principal reasons , namely , on the reasonable suspicion that the applicant had committed the serious offence and the need to ensure the proper conduct of the proceedings . As regards the applicant ’s health and his family situation , the courts found that there were no grounds for releasing him under LAW .

On DATE the trial began . The court heard evidence from defendants . Further hearings were held on DATE and CARDINAL and DATE . The applicant repeatedly – but with no success DATE asked for release .

On DATE the applicant asked ORG to release him on bail . The court refused on DATE . On DATE ORG upheld that decision . It held that the charge against the applicant had a sufficient basis in evidence that had so far been heard before the trial court . It considered that the applicant ’s offence represented a serious danger to society and that the nature of the offence , as well as the modus operandi , justified the fears that the applicant would obstruct the process of obtaining evidence . As regards the applicant ’s family situation , the court observed that his wife was under the proper care in a psychiatric hospital and that her condition was not a reason to apply LAW of LAW .

On DATE the applicant again asked for release on bail . He submitted that the health of his wife had markedly deteriorated and that she was in hospital . On DATE ORG rejected the application in view of the reasonable suspicion that the applicant had committed the serious offence with which he had been charged and the need to secure the proper conduct of the proceedings . The court found that the bad health of the applicant ’s wife was not a circumstance that could militate against his continued detention because she was being given care and treatment in hospital .

On DATE and CARDINAL , DATE and DATE , DATE and DATE ORG held further hearings .

In the interim , on DATE , the applicant had filed another application for release . He repeated his previous arguments and produced further documents describing the bad health and difficult personal situation of his wife . He stressed that the total length of his detention was very considerable .

ORG rejected the application on DATE . On DATE , on the applicant ’s appeal , ORG quashed the detention order and released him under the condition that he report DATE to the police station at his place of residence and surrender his passport to the court . In addition , the court imposed further restrictions on the applicant ’s movement and ordered , inter alia , that he be prohibited from leaving the territory of GPE . ORG did not share the applicant ’s opinion that he should be released in view of his family situation and held that detention was by itself a measure that inevitably entailed serious consequences for an individual ’s family life . It considered , however , that the length of the applicant ’s detention , which had at the time exceeded DATE , militated in favour of his release . The court stressed that that element , given the fact that the trial had reached an advanced stage , that evidence had been secured and that there was no danger that the applicant might obstruct the process of obtaining evidence , justified the opinion that the application of a less severe preventive measure would adequately secure the further course of the trial .

The trial came to an end on DATE . Beforehand , ORG dropped the charge of drug smuggling against the applicant and asked the court to find him guilty of drug trafficking . ORG convicted the applicant of drug trafficking and sentenced him to CARDINAL years’ imprisonment and a fine of MONEY . The applicant did not appeal against his conviction .

In their observations , the Government submitted that , on CARDINAL DATE the ORG had obtained information from ORG of ORG , according to which the NORP authorities had issued an order to search for the applicant by a “ wanted ” notice in connection with the suspicion of his having been involved in money laundering and with their intended request for his extradition to GPE .

The applicant submitted that throughout his trial he had been unaware of that fact and that he had learnt of it – and of the fact that he had already been sentenced in absentia by the NORP courts DATE on DATE , when he had been arrested by the NORP authorities . He produced the relevant warrant of arrest .

In that connection , the applicant added that the NORP courts had refused to extradite him to GPE because the NORP courts had not ensured him a fair trial in absentia . To begin with , he had not been informed of the charges . Nor had he been heard , summoned to stand trial or notified of the judgment . He produced the relevant decision given by ORG on DATE . The court considered that his extradition to GPE was inadmissible because “ in the trial preceding his conviction a minimum of his defence rights had not been respected ” .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE – Code of Criminal Procedure ( Kodeks postępowania karnego ) ( “ the DATE Code ” ) – entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The DATE Code is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

The DATE Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

Article CARDINAL § CARDINAL of the DATE Code , in the version applicable at the relevant time , read :

“ Preventive measures shall be imposed by the court ; before a bill of indictment has been lodged with the competent court , the measures shall be imposed by the prosecutor . ”

Article CARDINAL stated , in so far as relevant :

“ CARDINAL . The prosecutor may order detention on remand for a period not exceeding DATE .

( CARDINAL ) the court competent to deal with the case , upon the prosecutor ’s request , for a period not exceeding one year ;

( CARDINAL ) ORG , upon request of ORG , for a further fixed term required to terminate the investigation . ”

Article CARDINAL of the DATE Code set out general grounds justifying imposition of preventive measures . That provision , as it stood at the material time , provided :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined grounds for detention on remand . That provision , in the version applicable until DATE provided , in so far as relevant :

“ Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society . ”

On DATE paragraphs ( CARDINAL ) and ( CARDINAL ) were repealed . From that date on that provision read :

“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL then read :

“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”

The DATE Code set out the margin of discretion as to maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand , the most extreme among the preventive measures , should not be imposed if more lenient measures were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of these measures , are considered adequate . ”

The provisions of the DATE Code providing for “ mandatory detention ” ( for instance , pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the LAW DATE referred to above .

Finally , Article CARDINAL provided :

“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :

( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) it would entail excessively serious repercussions for the accused or his family . ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and resides in the town of FAC , GPE region , GPE .

On an unspecified date the applicant instituted CARDINAL separate sets of proceedings in FAC against his employer , a ORG - owned company , ORG ( NORP управління будівництва ) , for salary arrears and other payments .

On DATE and DATE the court found for the applicant and awarded him a total of CARDINAL NORP hryvnyas ( ORG ) . On DATE the court dismissed the applicant ’s third claim as time - barred .

In DATE the Zhovti Vody ORG initiated enforcement proceedings .

The applicant received UAH CARDINAL , but the remainder of the awards remains unpaid .

On DATE ORG liquidated the debtor enterprise and the writs of enforcement were transferred to the liquidation commission .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

Since DATE the applicant has operated a personal security service ( Personenschutzunternehmen ) .

On DATE he lodged an application for gun licences ( waffenrechtliche Erlaubnis ) with the county of ORG ) , which was granted . Subsequent requests for a renewal of these licences in DATE and DATE were only provisionally granted and were finally dismissed on DATE .

On DATE the applicant lodged an administrative appeal ( Widerspruch ) against the decision of DATE , which was dismissed on DATE .

The applicant also applied to ORG for interim measures . This application was dismissed in DATE , which decision was confirmed on appeal by ORG in DATE .

On DATE the applicant brought an action with ORG , initially without detailed reasoning .

On DATE the statement of defence and the administrative files were submitted to the court . On DATE the applicant appointed additional legal counsel , who resigned again in DATE .

NORP In DATE ORG ordered the applicant to reason his action within DATE . After the applicant 's lawyer had twice requested an extension of the time - limit set by the court he submitted the reasoning on DATE . In DATE the applicant appointed additional legal counsel .

On DATE ORG scheduled a hearing for DATE , which was subsequently rescheduled for DATE upon the defendant 's request .

After the hearing on CARDINAL DATE the judgment was delivered and on CARDINAL and DATE served on the applicant 's counsel .

On DATE the applicant appealed the judgment . On CARDINAL DATE the files were transferred to ORG . On DATE the reasoning of the appeal was submitted . On DATE and CARDINAL DATE answers to the appeal were lodged .

On DATE ORG informed the applicant 's counsel , at his request , that it was not foreseeable when a decision would be rendered .

On DATE a hearing was scheduled for DATE . On DATE , after inspection of the files , the applicant 's counsel informed ORG that the files were incomplete . On DATE the court started an enquiry in this respect and informed counsel on CARDINAL DATE that its investigations had been to no avail . On DATE the applicant 's counsel asked for the hearing to be postponed in order for the missing files to be reassembled . On DATE the hearing took place ; however , the case was adjourned .

On DATE ORG requested the missing files from the administrative authorities without success . In DATE the applicant 's counsel enquired about the state of the proceedings . On DATE ORG requested the files from ORG , without success . On CARDINAL DATE the court informed counsel that its efforts to locate the missing files had failed and that a hearing was planned for DATE .

On DATE a hearing was scheduled for DATE . On DATE the applicant 's counsel asked for the hearing to be postponed because he had not yet been able to reassemble the missing documents . The hearing was subsequently cancelled .

On DATE new counsel for the applicant requested a hearing and repeated this request on DATE . On CARDINAL DATE counsel again asked for an oral hearing to be scheduled and promised to try to reassemble the missing documents . On DATE , after counsel had inspected the files in DATE , he informed the court that he did not deem the missing documents relevant and requested a hearing .

On DATE the applicant 's former counsel applied for legal aid . On DATE the applicant 's current counsel filed a motion for bias against the presiding judge because no hearing had been scheduled . On DATE he enquired about the state of the proceedings .

On DATE the court asked for a clarification of the applicant 's representation and ordered the applicant 's counsel to submit a power of attorney , which he submitted on CARDINAL DATE . On DATE the applicant 's counsel again enquired about the state of the proceedings . On DATE the court asked whether a hearing could be scheduled for DATE . The parties agreed . On DATE the court informed the parties that because of the motion for bias the hearing could not be held on the date agreed upon . On DATE the motion for bias was dismissed .

On DATE and DATE applicant 's counsel renewed his request for a hearing . On DATE the request for legal aid was dismissed . On DATE a hearing was scheduled for CARDINAL May CARDINAL . After the hearing ORG dismissed the appeal and refused leave to appeal on points of law . On DATE the reasoned judgment was served on the applicant 's counsel .

On DATE the applicant 's counsel objected to the refusal to grant leave to appeal on points of law . On DATE ORG dismissed the objection ; this was served on the applicant 's lawyer on DATE .

On DATE the applicant brought a constitutional complaint against , inter alia , the decisions of ORG of DATE , ORG of CARDINAL DATE and ORG of DATE , as well as the decisions of the administrative courts with regard to the interim proceedings . He alleged , inter alia , a violation of his right under LAW because of the length of the proceedings . At the same time he applied for restitutio in integrum because he had failed to comply with the DATE time - limit for constitutional complaints .

On DATE ORG informed the applicant about doubts as to the admissibility of his complaint and asked him to indicate within DATE whether he wanted to pursue his complaint . On DATE the applicant , who had in the meantime retained new counsel , requested an extension of the time - limit until DATE . In DATE ORG informed the applicant 's counsel that the case would not be registered as a case requiring a judicial decision but would remain in the general register until further submissions had been made . On DATE counsel of the applicant submitted observations . On DATE the case was registered as a case requiring a decision .

In a partial decision of DATE ORG ( file no . CARDINAL BvR CARDINAL/CARDINAL ) dismissed the constitutional complaint as inadmissible in part . The remainder , regarding the length of the proceedings , was forwarded to ORG Saxony - Anhalt for comments on DATE .

On DATE ORG submitted its comments . On DATE ORG refused to admit the remainder of the applicant 's constitutional complaint for examination without examining the application for restitutio in integrum . On DATE the applicant 's lawyer received ORG decision .

Section CARDINAL of ORG ( Verwaltungsgerichtsordnung ) specifies the requirements that every complaint lodged with the administrative court must comply with , CARDINAL of which is that the facts and evidence on which the complaint is based should be specified . It further provides that the court shall request the applicant to furnish the necessary information within a determined period of time in the event that the complaint does not meet these requirements .

Section DATE ( CARDINAL ) of ORG provides that the court shall investigate the facts of its own motion . Furthermore , it is not bound by the submissions or requests of the parties .

Further relevant domestic law , applicable mutatis mutandis to proceedings before the administrative courts , is described in the ORG 's decision of GPE v. GPE ( see GPE v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALVII ) ; regarding special complaints alleging inaction ORG explicitly decided on DATE ( file no . CARDINAL B CARDINAL/CARDINAL ) that ORG do not provide for such a remedy .

The draft bill referred to by the respondent ORG in the case of GPE ( cited above , § CARDINAL ) , tabled in DATE , was abandoned in DATE . On DATE the Government introduced a new draft , namely the LAW on legal protection in the event of excessive length of judicial proceedings and preliminary proceedings under criminal statutes ( ORG über PERSON bei überlangen PERSON ) . Pursuant to this proposed legislation a complaint about a delay in the proceedings must first be lodged in the original proceedings . Where the domestic court subsequently does not provide redress , an action for damages can be brought .

The draft bill was forwarded to all affected institutions in DATE ; comments were expected by DATE . Afterwards necessary amendments will have to be agreed upon before the ORG deals with the draft bill for the first time . The draft bill will then be forwarded for comments to the GPE , the upper house of the NORP parliament , before being presented to the GPE , the lower house .

The relevant Council of LOC documents are described in the ORG 's judgment of PERSON v. GPE ( see GPE Nikolayevich Ivanov v. GPE , no . CARDINAL , § DATE , ORG DATE ... ( extracts ) ) .


CASE OF STANDARD VERLAGS GMBH AND KRAWAGNA-PFEIFER v. AUSTRIA

Violation of Art. 10;Not necessary to examine Art. 6;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant is the owner of the DATE newspaper “ der Standard ” , the second applicant was at the material time the chief editor of its internal politics section .

In the issue of “ der Standard ” of CARDINAL DATE the second applicant published an article about ORG ( ORG , “ the ORG ” ) in its regular section “ commentary ” . So far as material , it read as follows :

“ PERSON of the decent

The ORG is becoming ever truer to itself and many people are developing an increasingly similar image of it . For any organisation , whether a movement , party or whatever , is moulded by those at the top – how they interact with one another , which people they choose , how they cope with crises . All of this rubs off and has its effects . In the case of the ORG leader PERSON this means : people are useful idiots , you can entice them with fine words , appeal to their nobler principles and , indeed , use them as long as they are of service to your own interests .

Dealings within the ORG are correspondingly cunning . PERSON has never even been soft towards his closest friends and backers and has dropped them as soon as they no longer fitted in with his plans . PERSON , PERSON and PERSON are all examples . Others , such as PERSON or PERSON , are allowed all kinds of liberties because they know too much . They have not been damaged either by convictions for tax evasion or by any other slip - ups .

The MP PERSON was not excluded from the ORG on that account and was not scorned by his former colleagues because proceedings had been instituted against him for fraud . That is of little consequence to PERSON , especially as he would otherwise have to bar himself from the ORG . After all , PERSON was convicted in criminal proceedings at first instance because he had ruined a person ’s good reputation and prospects for the future . A conviction , in any event , is of a different order from the institution of proceedings . ORG was in fact dropped because in the PERSON case PERSON needs as many sacrificial victims as possible , to show to the public as and when required . ”

The article alluded to Mr PERSON ’s conviction of DATE by ORG , which had found him guilty of attempted defamation of a university professor , NORP , in that he and his then lawyer PERSON , who had at the material time become Minister of ORG , had prepared a video - taped statement for the purpose of having it broadcast by ORG which contained defamatory statements about NORP The broadcast had been refused , after a number of TV journalists and other staff of ORG had seen the video - tape .

This background was not mentioned in the above article but “ der Standard ” had reported on Mr PERSON ’s conviction in its issue of CARDINAL DATE . It read as follows :

“ Criminal court convicts PERSON also convicted of defamation

The ORG federal party leader , PERSON , and his lawyer , PERSON , were convicted of attempted defamation on DATE and fined MONEY and CARDINAL schillings respectively . The convictions relate to their ongoing DATE legal dispute with NORP [ full name ] , an GPE - based expert in financial law , who was thwarted in his bid to become President of ORG when PERSON embroiled him in a motorway - building scandal . Mr PERSON had repeatedly been asked to withdraw his allegations in the course of civil proceedings over DATE . Since no such action was taken , he and his lawyer have now been convicted at first instance by a criminal court . Both have appealed .

In DATE Mr PERSON blocked Mr D. ’s candidacy for the post of President of ORG by accusing him of having been involved in a major scandal of the time concerning the building of the GPE motorway . Mr NORP lodged a complaint and obtained an order from ORG requiring PERSON to withdraw his accusations in a television broadcast . But according to DATE ’s judgment , the videotape prepared for that purpose once again contained defamatory accusations . As the tape was not broadcast , however , the court ruled that the offence should be classified merely as attempted defamation . ”

Mr PERSON brought CARDINAL sets of proceedings against the applicants as regards the statement “ After all , PERSON was convicted in criminal proceedings at first instance because he had ruined a person ’s good reputation and prospects for the future ” contained in the issue of “ der Standard ” of CARDINAL DATE .

On DATE Mr PERSON brought private prosecution proceedings for defamation under LAW ( Mediengesetz ) .

On DATE the applicants made submissions to the St. ORG ( PERSON ) drawing its attention to ORG judgment of DATE in the preliminary injunction proceedings ( see paragraphs DATE ) , which had found that PERSON PERSON ’s interest in the protection of his reputation was outweighed by the public interest in receiving the information at issue .

On DATE the ORG ordered the applicant company to pay compensation of CARDINAL NORP schillings ( ORG ) to Mr PERSON and to publish the judgment .

Referring to Section CARDINAL of LAW , ORG found that the statement at issue fulfilled the elements of defamation ( üble GPE ) under LAW . Having regard to the judgment against Mr PERSON of DATE , the applicant company had failed to prove the truth of its statement that Mr PERSON had ruined D. ’s good reputation and his prospects for the future . Although the distinction between an attempted and a completed offence was , as a general rule , not relevant for proving the truth of a statement concerning a person ’s conviction , the applicant had claimed that the defamation committed by PERSON PERSON had had the effect of ruining D. ’s good reputation and his prospects for the future . However , as Mr PERSON had only been convicted of attempted defamation , NORP had not suffered any actual damage and the judgment did not establish any causal link between Mr PERSON ’s offence and the alleged negative consequences for D.

ORG acquitted the second applicant of the charge of defamation under LAW , finding that she had been present in court on DATE , when the judgment against Mr PERSON had been read out and had gained the impression that he had ruined D. ’s good reputation and future perspectives . Consequently , she had not acted with criminal intent .

The applicant company and Mr PERSON appealed . The applicant company contested in particular ORG view that it had failed to establish the truth of its allegation . It argued that the distinction between a conviction for the completed offence and a conviction for the attempted offence was contrary to established case - law under LAW . Further , it complained that ORG had failed to deal with its requests for the taking of evidence .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant company ’s appeal . Upon Mr PERSON ’s appeal , it convicted the second applicant of defamation und ordered her to pay a fine of ORG CARDINAL ( CARDINAL days’ imprisonment in default ) suspended on probation .

In ORG view the second applicant , being an experienced journalist must have known the impression which her statement made on the reader . She had claimed to have acted in good faith , however under LAW , the defence of good faith was not available where the defamatory statement at issue had been published in the media . The court repeated that the truth of the impugned statement had not been established . The second applicant had inappropriately linked Mr PERSON ’s conviction with events relating to NORP ’s candidature for President of ORG dating DATE back .

Finally , the appellate court noted that ORG , without giving reasons , had dismissed the applicant ’s requests for taking of evidence , namely to hear professor NORP and a number of staff members of ORG as witnesses in order to show that NORP ’s reputation had been ruined , as the latter had actually seen the video tape containing defamatory statements about him . The appellate ORG found , firstly , that the requests at issue were irrelevant , as the article had not claimed that NORP ’s reputation and perspectives for the future had been ruined with regard to staff members of ORG . Secondly , it noted that the applicants had not repeated their request in due form after the hearing before ORG had been postponed once .

The judgment was served on the applicants’ counsel on DATE .

On DATE Mr PERSON filed an action under CARDINAL of LAW ( ORG ) and a request for a preliminary injunction .

On DATE the ORG issued a preliminary injunction ordering the applicants to refrain from stating that Mr PERSON had been convicted since he had ruined a person ’s good reputation and perspectives for the future .

ORG had regard to the content of the article as a whole and considered that , against this background , the reference to Mr PERSON ’s conviction was not aimed at informing about the judgment against him , but was used to criticise his character . The main thrust of the article was not a political criticism of the ORG and its leadership but an attack on Mr PERSON with the aim of disparaging him . Thus , the court concluded that the boundaries of acceptable criticism had been transgressed .

On DATE ORG allowed the applicant ’s appeal and dismissed PERSON request for a preliminary injunction .

Having regard to the judgment of CARDINAL DATE against Mr PERSON , the court found that the incriminated sentence contained a true statement of facts . The offence of defamation was defined as accusing another of behaviour such as to make him contemptible and lower him in public esteem . It could therefore be equated with ruining a person ’s good reputation and perspectives for the future , in particular in a case like the present one where NORP had been a candidate for a public office . The dissemination of true statements of fact could only violate the interests of the person concerned if there was no prevailing public interest in receiving the information . However , information about the personal credibility of a politician , demonstrated by his conviction for defamation , was in the public interest , in particular in pre - election times when the general public gathered information about the different parties and their representatives .

On DATE ORG rejected Mr PERSON ’s extraordinary appeal on points of law , finding that it did not raise an important legal issue .

In the main proceedings the St. Pölten Regional Court gave judgment on DATE , ordering the applicants to refrain from the statement at issue , to withdraw it and to publish its judgment .

It observed that the notion of defamation in LAW had to be construed in the light of the criteria established by criminal law . The civil courts were not formally bound by a judgment of the criminal courts . However , it was ORG established case - law that a person convicted of a criminal offence could not argue in any subsequent proceedings that he had not committed that offence . ORG therefore considered itself bound by ORG final judgment of DATE in the proceedings under LAW ( see paragraphs LAW ) .

On DATE ORG dismissed the applicants’ appeal .

It confirmed the first instance court ’s view as regards the binding effect of the ORG conviction under LAW of LAW and added that the weighing of interests between the protection of Mr PERSON ’s good reputation on the one hand and the public interest in receiving the information was inherent in the conviction and could not be assessed anew in the civil proceedings .

On DATE ORG rejected the ORG extraordinary appeal on points of law .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW ) , as follows :

“ CARDINAL . Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”

Section CARDINAL of LAW ( ORG ) provides as follows :

“ CARDINAL . Anybody who , due to defamation , suffered a damage or loss of profit , may claim for compensation .

NORP The same applies if anyone is disseminating facts , which jeopardize another person ’s reputation , gain or livelihood , the untruth of which was known or must have been known to him . In this case there is also a right to claim a revocation and the publication thereof ... ”

It is ORG constant case - law that a person who has been convicted in criminal proceedings can not argue in subsequent civil proceedings that he has not committed the offence at issue ( lead - case CARDINAL Ob CARDINAL , DATE , ORG ) . ORG has also held that a judgment under LAW has this binding effect in subsequent civil proceedings ( CARDINAL ORG CARDINAL/CARDINALb , DATE ) .


The applicant is NORP and a NORP national , born in DATE and living in GPE .

A.

The applicant lives on LOC an island situated on the north - west coast of GPE . This island was linked to the mainland by ferry until DATE when a bridge was built . The bridge is controlled by a private company and provides the only year round access and is subject to a toll . Refusal to pay the toll is a criminal offence .

The applicant was charged in ORG at Dingwall on a summary complaint containing CARDINAL charges . The court was QUANTITY away from the applicant ’s home although there is a court at GPE on the island of LOC . The first offence was committed on DATE . Each charge involved a contravention of section FAC ) of the New Roads and Street Works Act DATE ( “ the DATE LAW ) . The charges were that on FAC crossing near the toll - booth , the applicant , being liable to pay a toll by virtue of FAC ( ACARDINAL ) Extension ( FAC ) Toll Order DATE , without reasonable excuse refused to pay the toll .

There were CARDINAL other people charged at the same time as the applicant , but most people have had the charges against them dropped . The applicant did get legal aid in the form of emergency cover in ORG .

When the applicant appeared in answer to the complaint , pleas as to competency and relevancy were put forward on DATE but rejected by ORG , and he adjourned the diet for trial , which took place on DATE . The applicant complained that on each occasion he had a reasonable excuse why he should not pay the toll . The sheriff found that the applicant ’s arguments did not amount to an objective reason or reasonable excuse of any kind . All of the applicant ’s reasons were subjective . The sheriff found the applicant guilty of all CARDINAL charges ; he imposed fines on each of the charges and ordered recovery of the fines by civil diligence .

In this case LAW was entered into by the Secretary of ORG and ORG on DATE . In that agreement the Secretary of ORG assigned the right under and in terms of ORG to charge and collect tolls during the concession period , which was stated to commence on the date of issue of the NORP to Use for the crossing . On the same date those parties signed a ORG which provided that on the completion of the crossing the developer would be granted the right to collect and retain tolls and operate and maintain the crossing . The agreement also provided that , following an inspection of the bridge on completion , the Secretary of ORG , if satisfied all was in order , would issue a ORG to Use .

The Invergarry - Kyle of FAC ( ACARDINAL ) Extension ( FAC ) Toll Order DATE ( “ the Toll Order ” ) was made on DATE and came into force on DATE . The Permit to Use was signed on DATE .

The applicant appealed against both conviction and sentence but subsequently only proceeded with the former appeal . On DATE before the hearing the applicant was informed that he was to be granted legal aid .

The first ground of appeal was that the proceedings were incompetent since FAC ( who subsequently changed their name to ORG ) had no proper assignation of the right to collect tolls . In LAW the Secretary of ORG had purported to assign the right to charge and collect tolls to ORG as the Concessionaire but that purported assignation was void as the Secretary of ORG did not have the power to grant an assignation at that time ( it was prior to the existence of LAW ) .

On DATE ORG found that there was nothing in the DATE Act to prohibit an assignation of this type being made before execution of FAC and rejected this ground of appeal . They felt it was clear from section CARDINAL(CARDINAL ) of the CARDINAL LAW that it was envisaged that the contract with the developer would pre - date LAW . The ORG found that in effect the terms of LAW were that there would be no transfer of the Secretary of ORG ’s right to charge tolls until the Toll Order was made . Further at common law it was possible to grant an assignation of a right in anticipation of it coming into existence .

The second ground of appeal was that the copies of LAW provided were incomplete and this was unfair to the applicant . ORG

The third ground of appeal was that it had not been established that the collection of the tolls was made by a person duly authorised by the concessionaire ( FAC ) . The ORG rejected this saying that it was reasonable to infer that the men in the toll booths had authority to collect tolls , and that by driving into the lane which was not appropriate for the toll barrier the applicant was seeking to by - pass the toll barrier and was thus refusing to pay the toll . In the circumstances the toll collectors were acting with ostensible authority and must be presumed to have been duly authorised . In any event on CARDINAL occasions the bridge manager himself and on CARDINAL occasion the bridge supervisor personally asked the applicant to pay and he refused .

During DATE and DATE the applicant was called to PERSON court CARDINAL times and went to the appeal court once . He was charged with non - payment on each occasion he refused to pay the fine during this period . On DATE the applicant failed to appear at CARDINAL of the intermediate hearing diets because he never received notification of the hearing . He was as a result arrested and held TIME in the cells . Subsequent to this in DATE the Government enacted retrospective legislation to prevent the use of multiple intermediate diets to continue a case . He was in fact detained TIME in police cells CARDINAL times and in prison for DATE . The appeal was therefore dismissed .

On his arrest the applicant was driven QUANTITY to the police station at speed and suffered pain from an old back injury and on CARDINAL occasion on arrival sought pain killers from the police doctor . He had to give up his property , and was placed in a cell with a thin mattress and non - flushable toilet . He was given water and no other drink on DATE of arrest . TIME he ate his breakfast standing by the open toilet and was only allowed to wash in a sink under guard .

On DATE the applicant wrote to the Secretary of ORG for GPE seeking a review of his case because in other identical cases the prosecution submitted in evidence sections of the documents deemed to be irrelevant in his case . The Secretary of ORG replied on DATE having investigated the allegations made . He concluded that the applicant was mistaken in that the documents produced by the ORG in the other cases were exactly the same as in the applicant ’s case . Any additional material had been introduced by the defendants . There was nothing to suggest a miscarriage of justice .

On DATE and DATE the applicant was charged and on DATE the applicant was found guilty of a road traffic offence following his stopping at the toll barrier and refusing to pay the toll . The police charged him with obstruction as they had been told not to charge anyone under LAW any longer . The applicant was legally represented and submitted a writ of suspension and appeal .

On DATE the applicant also wrote to a Member of ORG complaining about the number of people imprisoned for refusing to pay tolls , the number of intermediate diets which were fixed against him , and the lack of legal aid . The Lord Advocate replied confirming that the applicant was remanded in custody because of his repeated failure to appear in court . He was not sentenced to imprisonment as punishment on conviction for an offence . The law in respect of intermediate diets was amended in DATE . In respect of the lack of legal aid it was pointed out that he was convicted after trial on CARDINAL separate occasions and his first CARDINAL appeals went to a full hearing . At CARDINAL of those the applicant was represented by counsel .

On DATE the applicant did not attend court in GPE because he refused to pay the toll on FAC . On DATE the applicant wrote to the Secretary of GPE complaining about this event . There was a further trial on this charge on DATE relating to another charge of obstruction .

B. Relevant domestic law and practice

A summary of the relevant provisions of section CARDINAL , CARDINAL and CARDINAL LOC and Street Works Act DATE is as follows :

Section CARDINAL

( CARDINAL ) and ( CARDINAL ) This empowers the Secretary of ORG to make a toll order relating to a special road to be provided by the Secretary of ORG ( such as FAC ) . The power is exercisable by statutory instrument and there is no requirement for Parliamentary approval .

( CARDINAL ) This provides that the toll order and the special road scheme are to proceed in tandem .

( CARDINAL ) This envisages that the Secretary of ORG ( where he is the roads authority ) may enter a contract for the design or construction of a road which both parties intend will be subject to a toll order .

Section CARDINAL

( CARDINAL ) This states that the toll order may authorise the Secretary of ORG to assign his right to charge and collect tolls .

Section CARDINAL

It is an offence , without reasonable excuse , to refuse , fail to pay or evade a toll which a person is liable to pay by virtue of a toll order .


“ Unless otherwise specifically provided by law , objection proceedings are conducted without a hearing . If necessary , the public prosecutor [ may be ] heard . ”

“ As regards infringements falling within its jurisdiction , the ... magistrates ' court makes its ruling , without holding a hearing , through a penal order . The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of DATE ... ”

“ The judge schedules a hearing if he sees an inconvenience in ruling in the absence of CARDINAL . ”

“ A hearing shall be held if the objection is raised against a prison sentence imposed by a penal order . ( ... )

The suspect can be represented by defence counsel during the hearing . ( ... )

The objections against penal orders ( ... ) are examined by a judge at the criminal court of first instance , in line with the procedure described under LAW , CARDINAL and CARDINAL . The objection would suspend the execution of the penal order . ”

“ Where the Minister of ORG has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of ORG , he may issue a formal order to ORG requiring him to ask ORG to set aside the judgment concerned ... ”


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

NORP In DATE and DATE the applicant worked as a journalist and senior inspector at the propaganda department of ORG .

NORP In DATE the applicant left GPE and settled first in GPE and then in GPE .

In DATE the Sofia Military Court , whose judgment was upheld DATE by ORG of ORG , tried the applicant in his absence and convicted him of treason and espionage . He was sentenced to DATE imprisonment and forfeiture of all his assets , and was stripped of his PERSON residence .

NORP In DATE , following the applicant ’s return to GPE in DATE , ORG of FAC of ORG set these judgments aside and the remitted the case for a fresh examination . In DATE the Sofia Military Court , whose judgment was upheld DATE by ORG of ORG , reconvicted the applicant of treason and espionage , and sentenced him to DATE imprisonment . It also deprived him of the right to reside in GPE and forfeited all his assets . The applicant was kept in custody DATE .

NORP In DATE ORG of FAC of ORG set the above judgments aside and acquitted the applicant .

On DATE the applicant filed an action under the DATE ORG ( see paragraph CARDINAL below ) . He named as defendants ORG , ORG , ORG , ORG , ORG , ORG , FAC and ORG , all of which had allegedly participated in various ways in the repression against him . He claimed compensation for the pecuniary ( including lost pay , ORG fees , the value of the confiscated chattels and flat , and the loss of enjoyment of these properties ) and the nonpecuniary damage suffered as a result of the criminal proceedings against him , the confiscation of his property and his detention .

The Sofia City Court examined the case in QUANTITY hearings , held DATE at one to threemonth intervals . CARDINAL of them took place before DATE the date on which the ORG entered into force in respect of GPE .

In examining the case the court heard a number of witnesses and several experts who drew up reports on the value of the flat and the chattels confiscated from the applicant . At the request of the applicant , some of the reports were updated to take account of the increase of the price of the flat and of the chattels due to the high inflation in the country DATE . The applicant removed or added defendants on CARDINAL occasions . At the close of the proceedings the defendants were ORG , ORG , and ORG , Finance and Defence . He also twice increased the value of his claims . On CARDINAL occasions the court instructed him to itemise and specify his claims with regard to each defendant .

Nine hearings ( CARDINAL before DATE and CARDINAL after that date ) were adjourned owing to various problems attributable to the authorities , such as the failure to properly summon or serve documents on defendants , or to obtain expert reports in time .

One hearing , listed for DATE , was adjourned because the applicant ’s lawyer was on strike . On CARDINAL occasions in DATE and DATE the case was also adjourned to allow the drawing up of additional expert reports requested by the applicant .

In a judgment of DATE ORG partly allowed the applicant ’s claims against ORG and ORG , holding , inter alia , that they were liable , both directly and in lieu of their subordinate entities ( ORG and GPE ) , for the damage suffered by the applicant . The court dismissed the claims against the other defendants , holding that they were not the properly answerable ORG entities . The judgment was not appealed against and entered into force .

On DATE the Chief Prosecutor petitioned ORG to review ORG judgment .

On DATE ORG set the judgment aside and remitted the case for a fresh examination . It held that GPE had failed to identify the proper defendants to the applicant ’s action . In the court ’s view , the ORG entity answerable for the damage stemming from the actions of ORG , ORG and ORG of ORG was ORG , from whose budget they were being financed .

During the second examination of the case , which began in DATE and ended in DATE , ORG held DATE hearings . The intervals between them ranged DATE . The court admitted in evidence CARDINAL expert reports . At the start of the proceedings the defendants were ORG , ORG and ORG .

Eleven hearings were adjourned because of various problems attributable to the authorities , such as the failure to properly summon or serve documents on defendants , or to obtain expert reports in time .

The applicant was responsible for the adjournment of CARDINAL hearings : CARDINAL because he was in hospital and could not attend , and CARDINAL others because he requested expert reports . On CARDINAL occasions he changed defendants , as some of them had ceased to exist and had been succeeded by other entities , and as apparently he decided that the CARDINAL Ministries were not liable .

In a judgment of DATE ORG partly allowed and partly dismissed the applicant ’s claims against ORG , ORG , ORG and ORG . It also noted , inter alia , that ORG earlier holding concerning ORG liability for the actions of the military courts and prosecution offices ( see paragraph CARDINAL above ) was no longer apposite , as following legislative amendments these entities were presently financed from the judiciary budget .

Both the applicant and ORG appealed . The applicant requested CARDINAL expert reports on the value of his confiscated properties and another report on the amount of interest due .

The Sofia Court of Appeals examined the case in CARDINAL hearings , which took place DATE and DATE at CARDINAL to fivemonth intervals . CARDINAL of them was adjourned as CARDINAL of the defendants had not been duly summoned .

After allowing an increase of the applicant ’s claims and , despite its initial reluctance , ordering CARDINAL expert reports requested by the applicant , in DATE the court annulled these actions and decided to start the proceedings anew , as it noted that it had mistakenly summoned as a defendant ORG instead of ORG , which had succeeded it in DATE .

NORP In a judgment of DATE ORG quashed ORG judgment , and partly allowed the applicant ’s claims against ORG , ORG , ORG and ORG . It also held that the entity liable for the damage arising from the confiscation of the applicant ’s property was the ORG and not any of the above authorities , and accordingly ordered it to pay the applicant compensation .

The applicant , ORG and the ORG , represented by ORG , appealed on points of law .

After holding a hearing on DATE , on DATE ORG partly upheld ORG judgment , partly reversed it , increasing the amount of nonpecuniary damages awarded to the applicant , and partly quashed it , remitting the part of the case relating to the quashed part of the judgment to ORG . It held , inter alia , that by ordering the ORG to pay damages to the applicant the lower court had ruled on a claim which had not been properly brought before it . The ORG had not been named as a defendant and had not been party to the proceedings . The court further held that the applicant had erred by claiming compensation for the damage arising from the confiscation from ORG , ORG , ORG and ORG . They were not liable , the proper defendant to such claims being the ORG itself . The court also criticised the lower courts for not clearly identifying the different claims in the operative provisions of their judgments and for failing to clarify the procedural position of ORG .

At the time of the latest information from the parties , CARDINAL DATE , the proceedings were once more pending before ORG .

The statute regulating tort claims against the ORG is the DATE ORG Caused to LAW ( „ Закон за отговорността на държавата за вреди , причинени на граждани DATE this was the original title ; on DATE it was changed to the ORG and ORG , „ Закон за отговорността на държавата и общините за вреди “ ) . Its section CARDINAL regulates the liability of the administrative authorities and section CARDINAL regulates the liability of the courts and of the investigation and the prosecution authorities . Section CARDINAL provides that an action for compensation has to be brought against the authorities whose unlawful decisions , actions or omissions have caused the damage . In a binding interpretative decision ( тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) made on DATE the Plenary Meeting of ORG of ORG resolved a number of contentious issues relating to the construction of various provisions of the LAW and in particular clarified the proper defendants to tort actions for various forms of official misconduct .