David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Kežmarok . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant used and reconstructed real property of which he was a co - owner .

On DATE CARDINAL other co - owners sued the applicant and several other persons , seeking their eviction from the property .

On DATE ORG in GPE , by an injunction , ordered the applicant to refrain from further reconstruction of the building . As a result , the applicant was obliged to live in a rented flat .

On DATE the plaintiffs withdrew the action . On DATE ORG discontinued the proceedings on that ground . On DATE the applicant appealed .

On DATE ORG in Prešov upheld the first - instance judgment , which became final on DATE .

On DATE the applicant , represented by an advocate , lodged a complaint with ORG alleging that the proceedings before ORG had lasted an excessively long time . In particular , the applicant alleged that ORG had failed to examine the merits of the case for DATE , from DATE to CARDINAL DATE , and that the court had remained entirely inactive from DATE to DATE . The letter indicated that the plaintiffs had withdrawn their action on DATE and that at the time when the constitutional complaint was lodged the proceedings had been discontinued by a final decision .

The applicant enclosed with his complaint a copy of ORG decision of DATE . A stamp on the decision indicated that it had become final on DATE .

On DATE ORG rejected the complaint as out of time . ORG observed that under LAW ( CARDINAL ) of LAW DATE a complaint about delays in proceedings ( which were to be considered as “ notification of other interference ” for the purpose of that provision ) should be made within DATE when the plaintiff could have learned of the interference .

The decision further stated , with reference to LAW , that ORG was bound by the applicant 's submission , including his allegation that the proceedings had ended following the withdrawal of the action on DATE . ORG held that unjustified delays in the proceedings of which the applicant complained had ended DATE prior to the introduction of his complaint under LAW .

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

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

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

In many cases it has been the practice of all chambers of ORG to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged ( see , for example , decision files nos . I. ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL , PERSON . ÚS DATE and many others ) .

In his separate opinions in such cases CARDINAL judge of ORG consistently expressed the view that , in accordance with section CARDINAL ( CARDINAL ) of LAW DATE , a complaint about length of proceedings could be lodged within DATE of the date when the proceedings ended by a final decision ( see , for example , decision file nos . III . ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL , III . ÚS DATE , III . ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL and III . ÚS QUANTITY ) . Reference was made , inter alia , to the ORG 's practice under LAW . The judge argued that the termination of domestic proceedings by a final decision was not an obstacle to the examination by ORG of their length where the relevant complaint had been made within the statutory time - limit .

In a reply to ORG inquiry in the context of the present application , on DATE the Vice - President of ORG indicated that it was the practice of chambers of ORG to examine complaints about delays in proceedings before ordinary courts only in cases where such proceedings were still pending .


No violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On several occasions ( in DATE , DATE , DATE and DATE ) the applicant was convicted in GPE of disorderly conduct and attempted escape . In the applicant ’s submission , in DATE , DATE , DATE , DATE , DATE , DATE and DATE , while in the hands of NORP officials , he was subjected to illtreatment .

On DATE , in GPE , the applicant inflicted numerous cuts on himself and was placed in a hospital . He was discharged from the hospital on DATE .

NORP In DATE the applicant arrived in GPE to look for work . He was registered as a migrant in GPE .

On DATE the Kumkurgan District Court of GPE ordered the applicant ’s placement in custody under suspicion of having committed aggravated theft of cattle .

On DATE an NORP investigator placed the applicant ’s name on a wanted list .

On DATE the applicant was arrested by NORP police at his place of residence in GPE .

On DATE ORG requested the applicant ’s extradition . On DATE the request was received by ORG .

On DATE ORG decided to extradite the applicant to GPE .

On DATE the applicant ’s counsel lodged an appeal against the extradition order , arguing the following : proceedings concerning the applicant ’s request for temporary asylum were still pending ( see paragraphs DATE below ) ; the applicant ’s extradition would entail a breach of LAW had already found violations in the cases of PERSON and Others v. GPE and PERSON v. GPE involving extradition to GPE ; according to independent international observers ill - treatment was widespread in the NORP prison system and fair trial guarantees were not respected . No reference was made to the applicant ’s alleged previous experience while in detention in GPE .

On DATE GPE dismissed the applicant ’s appeal against the extradition order . It reasoned , in particular , that the applicant ’s references to possible ill - treatment in GPE had been unsubstantiated and that the applicant had not argued that he might be persecuted on racial , religious , social or political grounds .

The applicant appealed against the decision of CARDINAL DATE , arguing that his submission that he would face ill - treatment in GPE had not been examined by the court . Again no reference was made to the applicant ’s alleged previous experience while in detention in GPE .

On DATE ORG upheld the decision of DATE . It reasoned as follows : the applicant had absconded from the NORP authorities ; the decision to arrest the applicant had been taken by a competent NORP court ; the applicant was not a NORP national ; ORG had guaranteed that the applicant would not be extradited to a third ORG or punished for another crime , and that he would be free to leave GPE when he had served his sentence ; there were no reasons to reject the extradition request ; the applicant ’s allegations that torture of detainees was a widespread practice in GPE had not been substantiated ; the applicant had not proved that he might be persecuted on the grounds of race , religion , membership of a social group , political convictions or anything else .

In DATE and DATE the applicant applied for asylum to ORG of GPE ( “ the ORG ” ) . In his application , dated DATE , he claimed that all detainees in GPE were kept in poor conditions . On DATE he was interviewed by ORG officials .

On DATE the ORG dismissed the applicant ’s request ; he was notified of the decision on DATE .

The applicant then applied for temporary asylum . On DATE the ORG dismissed his request .

On DATE the applicant appealed against the ORG decision , arguing for the first time before the NORP authorities that he had been ill - treated in NORP prisons while serving his previous sentences .

Following the applicant ’s arrest on DATE ( see paragraph CARDINAL above ) , on DATE the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) , relying on LAW , ordered the applicant ’s placement in custody pending extradition on the basis of the decision of DATE by ORG of GPE ( see paragraph CARDINAL above ) .

On DATE the district prosecutor ’s office , referring to Article CARDINAL § CARDINAL of the ORG , issued a new decision authorising the applicant ’s placement in custody pending extradition on the basis of the NORP court decision of DATE .

On DATE the applicant complained to a court , referring to Decision no . CARDINAL-O - P of CARDINAL DATE of ORG and the ORG ’s case - law , that he had been unlawfully detained for DATE and that the term of his detention had not been extended .

On DATE the ORG of GPE ( “ the district court ” ) examined the complaint about unlawfulness of detention . It reasoned that , pursuant to LAW ORG , a prosecutor could place a person in custody where a foreign court ’s arrest warrant and a request for extradition existed . However , in the applicant ’s case , the district prosecutor ’s office had applied the preventive measure before the extradition request had been sent and thus had breached LAW ORG . At the same time , the second district prosecutor ’s office ’s decision to remand the applicant in custody had been taken after the extradition request had been received . The district court concluded that the district prosecutor ’s office ’s decision of DATE was unlawful . Nonetheless , it refused to release the applicant , arguing that the decision of DATE was compatible with domestic law and thus served as a legitimate ground for the applicant ’s detention . It also noted that “ [ CARDINAL provisions of the ORG do not establish terms for deciding on extradition issues and procedure for extension of the term of detention of persons in respect of which an extradition request has been received from a foreign ORG ” .

Both the applicant and the district prosecutor ’s office appealed against the decision of CARDINAL DATE .

On DATE GPE quashed the decision of DATE for procedural defects and remitted the case for a fresh examination at the first level of jurisdiction . It also stated that the preventive measure applied to the applicant should remain unvaried , without citing any legal grounds for his detention or specifying its term .

On DATE GPE , while upholding the extradition order , extended the applicant ’s detention for DATE , that is until DATE .

On DATE the district court discontinued the proceedings concerning the applicant ’s complaint that his detention was unlawful , for the reason that GPE had extended the term of detention until DATE .

On DATE ORG of GPE , while dismissing the applicant ’s appeal against the extradition request , touched upon the issue of lawfulness of the applicant ’s detention in CARDINAL sentence : “ There are no reasons to doubt the lawfulness of PERSON custodial detention pending his extradition ” .

On DATE the district prosecutor ’s office requested a court to extend the term of the applicant ’s detention for DATE .

On DATE the district court granted the prosecutor ’s request in part . It reasoned that the applicant had been charged with very serious crimes , such as theft of cattle , and that Rule CARDINAL of ORG had been applied in his case and concluded that there were no grounds for varying the preventive measure . The term of the applicant ’s detention was extended until DATE .

On DATE GPE dismissed the applicant ’s appeal against the decision of DATE , for the reason that ORG of GPE had ruled on DATE that his detention pending extradition was lawful .

On DATE GPE dismissed the applicant ’s appeal against the decision of DATE .

On DATE the district court extended the term of the applicant ’s detention until DATE , for the reason that he had been charged with serious crimes , did not have a permanent place of residence and thus could abscond or continue his criminal activities .

On DATE the district prosecutor ’s office ordered the applicant ’s release from custody , for the reason that the maximum period of his detention had expired .

Everyone has a right to liberty and security ( LAW ) . Arrest , placement in custody and custodial detention are permissible only on the basis of a court order . The term during which a person may be detained prior to obtaining such an order must not exceed TIME ( Article CARDINAL § CARDINAL ) .

The term “ court ” is defined by LAW CCP ) of DATE as “ any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW ” ( LAW ) . The term “ judge ” is defined by the ORG as “ an official empowered to administer justice ” ( LAW ) .

A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace , a regional court or ORG ( LAW ) .

LAW ORG governs the application of preventive measures . Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level ( LAW ) . A judge ’s decision on placement in custody may be challenged before an appeal court within DATE ( LAW ) . The period of detention pending investigation of a crime must not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level ( LAW ) . Further extensions may be granted only if the person has been charged with serious or particularly serious criminal offences ( LAW ) .

LAW ORG lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged . Acts or omissions of a police officer in charge of the inquiry , an investigator , a prosecutor or a court may be challenged by “ parties to criminal proceedings ” or by “ other persons in so far as the acts and decisions [ in question ] touch upon those ORG interests ” ( LAW ) . Those acts or omissions may be challenged before a prosecutor ( LAW ) . Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings , or to discontinue them , or any other decision or inaction capable of impinging upon the rights of “ parties to criminal proceedings ” or of “ hindering an individual ’s access to court ” may be subject to judicial review ( LAW ) .

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .

Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body , a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of GPE ( LAW ) .

Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under LAW ( LAW ( CARDINAL ) ) .

Verifying the compatibility of LAW of ORG in the GPE of DATE , ORG ruled that a foreign national liable to be expelled from the NORP territory could not be detained for CARDINAL without a court order .

Assessing the compatibility of LAW ORG with LAW , ORG reiterated its settled case - law to the effect that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the absence of specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is the procedure laid down in the ORG . That procedure comprised , in particular , LAW and the norms in its LAW ( “ Preventive measures ” ) , which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for the examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without complying with the procedure established in the ORG or in excess of the time - limits fixed in the LAW .

The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person ’s detention with a view to extradition .

ORG dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of the courts of general jurisdiction .

The Constitutional Court reiterated its settled case - law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .

ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE on the basis of a request for his or her extradition without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .

ORG dismissed as inadmissible a request for a review of the constitutionality of LAW ORG , stating that this provision “ does not establish time - limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure , it merely confirms a prosecutor ’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused . Therefore the disputed norm can not be considered to violate constitutional rights of [ the claimant ] ... ”

By a Directive Decision No.CARDINAL adopted by LAW of ORG of GPE on DATE , ( “ Directive Decision of DATE ” ) ORG issued several instructions to the courts on the application of LAW ORG . The ORG reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke LAW ORG to challenge a refusal to institute criminal proceedings or a decision to terminate them . The ORG stated that whilst the bulk of decisions amenable to judicial review under LAW also included decisions to institute criminal proceedings , refusals to admit defence counsel or to grant victim status , a person could not rely on LAW to challenge a court ’s decision to apply bail or house arrest or to remand a person in custody . It was further stressed that in declaring a specific action or inaction on the part of a law - enforcement authority unlawful or unjustified , a judge was not entitled to quash the impugned decision or to oblige the official responsible to quash it , but could only request him or her to rectify the shortcomings indicated . Should the impugned authority fail to comply with the court ’s instructions , an interested party could complain to a court about the authority ’s inaction and the latter body could issue a special decision [ частное определение ] , drawing the authority ’s attention to the situation . Lastly , the decision stated that a prosecutor ’s decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under LAW ORG .

In a Directive Decision No . CARDINAL , adopted by LAW of ORG of GPE on DATE ( “ Directive Decision of DATE ” ) , it was stated that , pursuant to LAW ORG , only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody . The judicial authorisation of placement in custody in that situation was to be carried out in accordance with LAW ORG and following a prosecutor ’s request for that person to be placed in custody . In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure . If the extradition request was accompanied by a detention order of a foreign court , a prosecutor was entitled to remand the person in custody without a NORP court ’s authorisation ( LAW ORG ) for a period not exceeding DATE , and the prosecutor ’s decision could be challenged in the courts under LAW ORG . In extending a person ’s detention with a view to extradition a court was to apply LAW ORG .

When carrying out actions requested under LAW , to which GPE and GPE are parties , an official body applies its country ’s domestic laws ( LAW ) .

Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .

The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .

A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE of the date of placement in custody ( LAW ) .

The UN Special Rapporteur on ORG stated to the CARDINALnd Session of the UN Human Rights Council on DATE the following :

“ The practice of torture in GPE is systematic , as indicated in the report of my predecessor PERSON visit to the country in DATE . Lending support to this finding , my mandate continues to receive serious allegations of torture by NORP law enforcement officials ... Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Against such significant , serious and credible evidence of systematic torture by law enforcement officials in GPE , I continue to find myself appealing to ORG to refrain from transferring persons to GPE . The prohibition of torture is absolute , and GPE risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture . I reiterate that diplomatic assurances are not legally binding , undermine existing obligations of GPE to prohibit torture , are ineffective and unreliable in ensuring the protection of returned persons , and therefore shall not be resorted to by GPE . ”

In DATE ORG issued a report entitled “ Nowhere to Turn : Torture and Ill - Treatment in GPE ” , which provides the following analysis :

“ Prolonged beatings are CARDINAL of the most common methods used by the police and security agents to frighten detainees , break their will , and compel them to provide a confession or testimony . They often start beating and kicking detainees with their hands , fists , and feet and then continue using truncheons , filled water bottles and various other tools ...

Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it ...

Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees . After forcing an old - fashioned gas mask over the head of the victim , who in some cases is handcuffed to a chair , the oxygen supply is cut ... ”

The UN Special Rapporteur on Torture stated to the CARDINALrd Session of ORG on DATE the following :

“ CARDINAL . The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by NORP law enforcement officials ...

Moreover , with respect to the events in DATE in GPE , the ORG High Commissioner for Human Rights reported that there is strong , consistent and credible testimony to the effect that NORP military and security forces committed grave human rights violations there . The fact that the Government has rejected an international inquiry into the LOC events , and any independent scrutiny of the related proceedings , and that there is no internationally accepted account of the events , is deeply worrying . Even more so , given that no independent monitoring of human rights is currently being conducted .

In light of the foregoing , there is little evidence available , including from the ORG that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in DATE ... ”

Amnesty International issued on CARDINAL DATE a document entitled “ GPE : A Briefing on Current Human Rights Concerns ” , stating the following :

“ ORG believes that there has been a serious deterioration in the human rights situation in GPE since the so - called PERSON events in DATE . ...

Particularly worrying in the light of GPE ’s stated efforts to address impunity and curtail the use of cruel , inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill - treatment by law enforcement officials and prison guards , including reports of the rape of women in detention . ...

Despite assertions by GPE that the practice of torture has significantly decreased , ORG continues to receive reports of widespread torture or other ill - treatment of detainees and prisoners .

According to these reports , in most cases the authorities failed to conduct prompt , thorough and impartial investigations into the allegations of torture or other illtreatment . ORG is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other illtreatment remains the exception rather than the rule . ...

Allegations have also been made that individuals returned to GPE from other countries pursuant to extradition requests have been held in incommunicado detention , thereby increasing their risk of being tortured or otherwise ill - treated and have been subjected to unfair trial . In CARDINAL case in DATE , for example , a man who was returned to GPE from GPE was sentenced to CARDINAL years’ imprisonment after an unfair trial . His relatives reported that , upon his return to GPE , he was held incommunicado for DATE during which time he was subjected to torture and other ill - treatment in pre - trial detention . He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible . ...

The government continued its strict control over religious communities , compromising the enjoyment of their right to freedom of religion . Those most affected were members of unregistered groups such as ORG congregations and NORP worshipping in QUANTITY outside state control . ”


CASE OF KALLIS AND ANDROULLA PANAYI v. TURKEY

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in GPE . They are a married couple .

The parties disagree as to the facts of the case .

On DATE PERSON , the applicants ' son , who at that time was DATE , was serving in ORG as a private soldier . TIME he entered ORG ( ORG ) buffer zone in GPE . He wanted to exchange his hat with CARDINAL belonging to a soldier of the NORP - Cypriot armed forces . He was off duty and unarmed . The NORP armed forces shot him .

When members of the ORG force in GPE ( ORG ) attempted to reach PERSON in order to provide medical treatment and try to save his life , the NORP armed forces opened fire , thus preventing medical aid from being administered .

According to the applicants , who cited articles published in the ORG newspaper of CARDINAL , DATE and DATE in this connection , had access not been denied to the persons seeking to provide medical assistance there would have been a good chance of saving PERSON life .

The applicants produced a report from the ORG Secretary - General dated DATE . In so far as relevant , this document reads as follows :

“ The third incident took place on DATE . An unarmed ORG soldier was shot and killed inside the ORG buffer zone in central GPE . The investigation has revealed that the lethal round was fired by a NORP - Cypriot soldier whom ORG had observed entering the buffer zone with his rifle strung across his back . Shortly thereafter a single shot was heard and the NORP - Cypriot soldier was seen running back in a crouched position to the NORP ceasefire line holding his rifle in his right hand . UNFICYP soldiers were prevented from reaching the ORG soldier by NORP - Cypriot soldiers who fired shots in the direction of the ORG soldiers each time the latter tried to move forward . ORG strongly protested to the Commander of the NORP forces in GPE the unauthorised entry of an armed NORP soldier into the buffer zone , the shooting incident and the hostile action , including live fire against ORG . ORG is pursuing with the NORP forces in GPE and with the NORP - Cypriot authorities the question of appropriate action and has requested that ORG police investigating the killing be able to interview the NORP - Cypriot soldier involved in the incident . The military authorities on both sides have been urged once again to respect the ORG buffer zone and ensure its integrity . ”

The applicants ' lawyer requested a copy of the relevant reports from ORG . However , his request was refused as the documents in question were considered to be internal ORG documents .

According to the ORG , the chain of events which led to the death of ORG Panayi could be summarised as follows .

The incident took place in a part of GPE where LOC marked the boundary of the “ GPE ” ( the “ LOC ” ) . In the NORP part of the buffer zone were the ORG sentry post and the positions of the NORP - Cypriot security forces . The positions of the NORP - Cypriot army ( ORG ) were on the NORP - Cypriot administration 's defence line , QUANTITY west of the ORG patrol road . The UN-CARDINAL observation post was QUANTITY south of the sentry positions of each of the CARDINAL sides . The Yıldırım sentry post was located on high ground which ran down steeply to the river bed ; the latter was marshland , covered with high reeds ; on the NORP - Cypriot side there were huge eucalyptus trees .

The ORG patrol road was on the other side of the river and entry into “ TRNC ” territory by UNFICYP soldiers was possible only by crossing a wooden bridge . The area starting QUANTITY west of the Yıldırım sentry post in the direction of the NORP - Cypriot sentry post could not be observed from the ORG observation post building , which had a view over the NORP and NORP - Cypriot positions but not the area in between .

On DATE of the incident it was observed from the Yıldırım sentry post that a fully armed soldier of ORG , who was wearing army uniform , had come out of his duty station and had entered the buffer zone . He made gestures by hand and called to the NORP - Cypriot soldiers on sentry duty to go over to him . One of the NORP - Cypriot soldiers on duty warned him in a loud voice in LANGUAGE , LANGUAGE and NORP not to approach ; another NORP - Cypriot soldier asked the NORP - NORP patrol to come to the area . Ignoring the verbal warning , PERSON proceeded into the buffer zone and descended towards the river bed ; a NORP - Cypriot soldier came out of his sentry post and walked QUANTITY in a westerly direction in order to be able to observe the ORG soldier advancing . At this moment another NORP - Cypriot soldier took up position on the southern side of the communication trench ; a soldier was also located above the trench at a point where he could have a better view of the vicinity of the river . He shouted once more to the NORP - Cypriot soldier , using the NORP word “ PERSON ( “ No ” ) , and instructed him to leave the area .

In spite of this Stelios Kalli Panayi entered into “ GPE ” territory by crossing the wooden bridge which only ORG soldiers were allowed to use . CARDINAL warning shots were fired by a NORP - Cypriot soldier ( one into the air and one towards the ground ) ; as PERSON proceeded further into “ NORP ” territory , causing a serious threat to the lives of the NORP - Cypriot soldiers , one more shot was fired to stop him .

On hearing the gunshots , a ORG soldier came out of his observation post , located QUANTITY south of the scene of the incident and started to look around ; as he did not have a clear overall view , he proceeded towards the place where the gunshots had been heard and was about to cross the bridge . However , he was warned by means of QUANTITY shots fired into the air by the NORP soldiers not to advance any further . In fact , the situation was still critical as it was not known whether PERSON had adopted a more advantageous crawling position .

At TIME an ambulance arrived in the area by the ORG patrol road . ORG Panayi was placed in the ambulance , which left for the hospital . Later , the NORP - Cypriot authorities were informed that he had died .

The Government produced a number of documents , including :

( a ) a map and some photographs of the area where the incident had taken place ;

( b ) a list of the “ incidents that took place at the NORP - Cypriot Guard Post ” , giving details of CARDINAL episodes , including firing into the air , provocation by throwing stones and use of abusive language ;

( c ) several articles published by NORP and/or NORP - NORP newspapers concerning the circumstances of the killing of PERSON , the differences between the versions of the facts given by the CARDINAL sides and political reactions to the incident .

The Government further produced the following documentary evidence :

( a ) A note dated DATE from the “ NORP ” ORG and Defence addressed to ORG ( with a copy to ORG ) , which reads as follows :

“ Upon being informed that a NORP pathologist accompanied by ORG will conduct an investigation at the scene of the incident whereby on DATE a ORG soldier was shot , the ORG has been contacted so that a pathologist from our side could also conduct a similar investigation at the scene of the incident on the basis of the principle of equality as well as reciprocity .

In accordance with the agreement reached with ORG , the same day Dr. PERSON from Dr. PERSON ORG has conducted an investigation at the scene of the incident and the report that he prepared is enclosed herewith . ”

( b ) The following note dated DATE signed by PERSON and addressed to Dr PERSON of Lefkoşa ( GPE ) ORG ( with a copy to ORG ) :

“ Regarding the shooting of a NORP - Cypriot soldier DATE in the buffer zone , accompanied by ORG I went to the scene of the incident . In order to reach the scene of the incident , we crossed the bridge known as the GPE bridge in the buffer zone by vehicle , went to the vicinity where the PERSON and ORG positions are located and stepped out of the vehicle . From there we proceeded to the north by crossing a wooden bridge and from right after there we reached the scene where the incident took place , which is CARDINAL from the NORP positions in the LOC . At the said place there were [ a ] trail of blood with QUANTITY diameter and a PERSON cap . According to the explanation given to me the bullet entered from the side of the right rib cage and exited from the left and it was also explained that the bullet also smashed the right arm from below the shoulder .

Also according to the explanation given to me , the corpse [ was ] found lying with his head towards LOC and foot LOC direction .

After having this information , accompanied by ORG , [ I ] returned to FAC and entered GPE by walk . ”

( c ) A statement by the “ NORP ” ORG and Defence , which reads as follows :

“ TIME in LOC area of Lefkoşa a fully equipped PERSON soldier was observed approaching the NORP position in the area , upon which he was warned to stop by our guard first in NORP , then in NORP and LANGUAGE . PERSON soldier continued to proceed towards our guard and our guard fired CARDINAL warning shots , CARDINAL in the air and CARDINAL to the ground . Despite numerous verbal warnings and warnings by fire , the PERSON soldier continued to proceed and violated the border , a shot was fired and he was observed to fall down . At TIME with the arrival of ORG ambulance to the scene the PERSON soldier was evacuated .

We protest and condemn this irresponsible act which resulted in the violation of the borders of GPE and remind once more the necessity for application of required measures by the parties concerned to prevent recurrence of such incidents . ”

( d ) An “ information document on death incident ” , a copy of which was addressed to the Director of ORG , ORG and Security and which contained the following information :

“ CARDINAL . TYPE OF INCIDENT : Firing on the NORP - Cypriot National Guard ( PERSON ) soldier who violated LAW .

PLACE OF INCIDENT : LOC of ORG ( DATE CARDINAL.CARDINAL ) .

PLACE OF UNIT WHERE INCIDENT OCCURRED : ORG CARDINALth Infantry Company .

DATE / TIME OF INCIDENT : DATE .

DETAILS OF INCIDENT : On DATE at CARDINAL:CARDINAL , the guards situated at ORG , in ORG , saw a fully equipped PERSON soldier approaching the wooden bridge on ORG , which only ORG is permitted to use . Then , the guards at the post called ORG guards , who were QUANTITY to the south of ORG and at the same time they verbally warned the PERSON soldier . Since the PERSON soldier suddenly disappeared , CARDINAL of the guards from ORG moved QUANTITY forward from the post and continued observing .

CARDINAL of ORG , who came to the area warned the PERSON soldier verbally and by gun , and then fired and shot him , while he was passing the wooden bridge and violating the GPE border . After the arrival of ORG and NORP officers to the area , the PERSON soldier , who fell down , was taken by ambulance at ORG and it was found out that he was dead .

The guards of ORG , which is to the south of ORG , Infrantry Private Ecevit AKSU and Infantry Private PERSON observed the acts of ORG , when the incident occurred . They stated that ORG was sitting at the guard post when the incident occurred and he went out after he heard the first gun shot . Then he started to observe ORG . TIME later , he heard CARDINAL gun shots and he ran to the area of the incident . After TIME , CARDINAL more bullets were fired . The total number of shots heard was CARDINAL or CARDINAL .

During the incident , ORG PERSON fired CARDINAL times ( CARDINAL bullet into the air as a warning , CARDINAL bullet at the ground as a warning , CARDINAL bullet to the target , and CARDINAL bullets into the air as warning to stop the ORG soldier ) . The other ORG Corporal PERSON fired CARDINAL times ( as warning to prevent the ORG soldier from approaching ) , so CARDINAL bullets were fired in total .

THE REASON FOR THE INCIDENT : The PERSON soldier 's persistent violation of GPE and ORG despite the verbal warnings and warnings by fire .

PERSONNEL INVOLVED IN INCIDENT : The guards of ORG , Infantry Private PERSON and ORG were present during the incident ; however , the personnel who fired were ORG , the son of PERSON , born in DATE and registered in GPE , and the other patrol was Corporal PERSON .

CONDITION OF THE AFFECTED PERSON : It was observed that the PERSON soldier , who fell down after being shot was taken by ambulance and it was found out that he died .

THE IDENTIFICATION OF THE AFFECTED PERSON : PERSON soldier was PERSON .

PROCEDURE FOLLOWED AFTER INCIDENT :

a. The PERSON soldier who was shot was taken from the place of incident by ambulance and was brought to ORG in LOC .

ORG was sent to the place of incident .

c. All units were informed about the incident , steel vests and steel helmets were distributed especially to all the guards at the contact line , guard posts were reinforced and observation activities were increased . ”

( e ) A note from the “ TRNC ” ORG ( ORG ) dated DATE concerning “ the ORG soldier who was shot for violating the line of contact ” , which reads as follows :

“ The incident that took place at CARDINAL on DATE at the YILDIRIM observation DATE ( coordinates DATE ) ; located within the area under the control of ORG of ORG – during which a ORG soldier was shot dead , is described below .

On DATE of the incident a fully equipped PERSON soldier , whose weapon was not visible , came out of the PERSON squad DATE which is located QUANTITY to the west of the YILDIRIM observation post at ORG line of contact ( coordinates DATE ) – and entered the buffer zone . He then waved at CARDINAL guards at the YILDIRIM observation post and called them by saying “ come here brother ” . The guards warned the PERSON soldier by shouting in NORP “ OXİ ” and asked him , in NORP , NORP and LANGUAGE , to stop . After the NORP soldier had entered the buffer zone , one of the guards radioed patrols who at the time were QUANTITY away to the north , and asked them to come to the area . CARDINAL of the guards then walked QUANTITY to the west of the YILDIRIM observation post in order to be able to observe the PERSON soldier who , by then , had gone into the river bed and was out of sight . In the meantime , the patrols who came from the communication trenches and who took up positions told the guard to return to his post and shouted at the NORP soldier to leave the area .

When the NORP Cypriot crossed the wooden bridge , which had been built on LOC in DATE for the exclusive use of the NORP patrol personnel , and started advancing into the GPE territory , CARDINAL of the patrols fired CARDINAL warning shots , first into the air and then at the ground . When the PERSON soldier ignored the warning shots and continued to advance , he was fired upon . When the NORP soldier fell to the ground the patrols thought that he had taken up a position and continued to observe him . The patrols also reported the incident to the duty officer by radio .

A NORP soldier at the ORG CARDINAL observation DATE which is located at QUANTITY to the south of the place of the incident – heard the shots and came out of his observation post and then started looking around . He saw our guard , who had been warned by the patrols , running back to the YILDIRIM observation post . [ The NORP soldier ] , unable to see the incident from his position , advanced in the direction of the shooting and arrived at the place of the incident . The patrols were concerned about a possible attack by the NORP soldier and they warned , first orally and then by firing CARDINAL warning shots into the air , the GPE soldier who , by then , had been attempting to cross the wooden bridge . [ The patrols ] thus prevented the NORP soldier from approaching the place of the incident . A NORP officer then arrived in the area .

At CARDINAL , when the ambulance arrived at the scene using the NORP patrol road , it was established that the NORP soldier had been injured . With the permission of ORG and the Commanding Officer who had arrived at the scene in the meantime , [ the ambulance ] was allowed to take the NORP soldier away . This was photographed by the Commanding Officer .

The subsequent investigation of the place of the incident and of the relevant personnel [ revealed that ] the PERSON soldier who crossed into the GPE soil and who was deemed to be carrying an assault weapon which could have posed a risk to our guards , was warned and then shot in accordance with the existing orders , instructions and rules of engagement . ”

( f ) Two notes which read as follows :

“ THE POSSIBILITY OF THE PERSON AT THE ORG CARDINAL ORG POST WITNESSING THE INCIDENT

The ORG CARDINAL guard post is located at a QUANTITY distance from the place of the incident and QUANTITY away from FAC guard post . QUANTITY covering the river bed and the trees in the area prevent the place of the incident from being seen from the ORG guard post . However , the NORP guard can see the actions of the NORP soldiers at the YILDIRIM guard post within a radius of QUANTITY metres . At the time of the incident the NORP guard at FAC post advanced QUANTITY away from his post in order to observe the PERSON soldier and asked the PERSON soldier to stop and leave the area . When the PERSON soldier insisted in continuing , the patrols who arrived at the scene warned the PERSON soldier and asked the NORP guard – a corporal – to return to his trench . The guard then returned to his guard post . It might have been possible for the NORP guard to see the NORP soldier returning to his guard post . The NORP soldier in ORG guard post , which is at a distance of QUANTITY from the ORG CARDINAL guard post , saw the NORP guard sitting in the ORG CARDINAL guard post . Both the NORP guard and the NORP guards left their posts after the first shot was fired . The NORP guard , who is said to have witnessed the incident , then continued to observe the incident . Furthermore , it is not possible to go down to the scene of the incident from the YILDIRIM guard post because the river bed is too steep and is covered with QUANTITY . Even entering the river bed from another direction would not enable the NORP guard to see . ”

“ THE TAKING AWAY OF THE GCNG SOLDIER FROM THE AREA BY THE P.F. PERSONNEL

The incident took place at CARDINAL . As stated in the ORG report , the NORP guard called for an ambulance only at CARDINAL and reported the incident . The NORP personnel arrived in the area at CARDINAL and were given permission to approach the scene of the incident by the duty NORP officer , commander of the duty [ soldiers ] and the commander of the ORG . The ambulance arrived at CARDINAL , the PERSON soldier was put in the ambulance immediately and the [ ambulance ] left the area at CARDINAL . ”

The Government drew the attention of ORG to ORG on ORG ( hereinafter “ ORG ) , adopted on DATE at the Eighth ORG on ORG . The relevant provisions of this document read as follows :

“ Whenever the lawful use of force and firearms is unavoidable , law enforcement officials shall :

( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved ;

( b ) Minimize damage and injury , and respect and preserve human life ;

( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment ;

( d ) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment . ”

“ Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law . ”

“ Law enforcement officials shall not use firearms against persons except in self - defence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life . ”

“ In the circumstances provided for under principle CARDINAL , law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms , with sufficient time for the warning to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . ”

“ Rules and regulations on the use of firearms by law enforcement officials should include guidelines that :

( a ) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted ;

( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm ;

( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk ;

( d ) Regulate the control , storage and issuing of firearms , including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them ;

( e ) Provide for warnings to be given , if appropriate , when firearms are to be discharged ;

( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty . ”


The applicants , PERSON , GPE and ORG , are NORP nationals , who were born in DATE , DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

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

Until DATE the applicants lived in GPE of LOC in GPE . On DATE the security forces came to the village and burned the villagers’ houses together with the belongings in them . The following day , the applicants left the village .

The applicants have not been supplied with alternative housing by the authorities . They currently live in ORG .

Upon the ORG complaint , the gendarmes drafted an incident report and the public prosecutor at ORG initiated an investigation into the incidents , which was pending at the time of the current application .

On DATE the applicants filed a petition with ORG requesting compensation for their losses and permission to return to their village . ORG did not respond within the DATE statutory period which meant that the petition was tacitly rejected .

On DATE the applicants filed an action with ORG against ORG , requesting compensation for the damage they had suffered and permission to return to their village . They also applied for legal aid and submitted to the court documents obtained from the village headman indicating their poverty ( fakirlik belgesi ) .

On DATE the applicants received a letter from the LOC Governor on behalf of ORG . The Governor informed them that , due to security reasons , the villagers would not be allowed to return to their villages until security was restored in that region .

On DATE ORG rejected the applicants’ request for legal aid . The court held that , since the applicants had sufficient means to be represented by a lawyer , they could not be considered to be in need of legal aid according to the case - law of ORG and the rules of civil procedure .

On DATE the court decided to discontinue the proceedings on the ground that the required legal fees had not been paid . This decision was served on the applicants on DATE .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants’ village or forced them to leave their homes .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI )


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

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

In DATE the applicant bought a house . The GPE subsequently allocated to the applicant the plot of land on which his house stood . In DATE , PERSON , the applicant ’s neighbour , moved the fence separating their respective plots and thus reduced the size of the applicant ’s land .

The applicant brought court proceedings against PERSON , seeking the removal of all impediments on the part of PERSON to his use of his land . On CARDINAL DATE ORG found in favour of the applicant . No appeal was lodged and the judgment became final . Following a request by ORG , on DATE ORG quashed the judgment of CARDINAL DATE and ordered a full re - hearing . On DATE ORG rejected the applicant ’s claims .

NORP In parallel , the applicant requested the municipality to determine the boundary between his land and that of PERSON was carried out on an unknown date in DATE . PERSON challenged the municipality ’s actions in court but her complaint was rejected on DATE by ORG . There was no appeal and the judgment became final .

The applicant requested the municipality to establish his title to the land . On DATE the municipality did so , determining the area of the land respectively owned by PERSON and the applicant . PERSON challenged that decision in court . Her request was rejected by ORG on DATE . That judgment was upheld by ORG on DATE and ORG on DATE . The judgment thus became final .

On DATE the municipality annulled its own decision of CARDINAL DATE and granted the applicant title to a smaller parcel of land . The applicant challenged the DATE decision in court and sought an order for the removal of all impediments to his use of his land . On DATE ORG annulled the DATE municipality ’s decision . That judgment was upheld by ORG on DATE and ORG on DATE . That judgment was final .

NORP The applicant requested ORG to issue an enforcement warrant , which was apparently refused . He made a number of complaints in this respect to various ORG authorities such as the ORG , ORG , the municipality ( for instance , in DATE , DATE , DATE , DATE and DATE ) and was informed that during DATE no enforcement warrant in his name had been submitted for execution . On DATE he was informed by ORG that it was not necessary to issue any enforcement warrant since the court in its judgment of DATE had rejected PERSON ’s claims and thus the municipality ’s decision of CARDINAL DATE remained in force .

On DATE PERSON ’s representative PERSON lodged a separate appeal against the judgment of DATE . On DATE ORG decided that the appeal by PERSON ’s representative should be examined by ORG , since most of the judges in GPE had already sat in the case . On DATE the ORG dismissed the appeal on grounds of res judicata . There was no appeal and the judgment became final .

On DATE E. initiated new proceedings asking the court to determine the rights over the land ( both hers and the applicant ’s ) . The applicant argued that there was no need to examine the case since all outstanding issues had been settled by the various municipality and court decisions adopted earlier . On CARDINAL DATE he asked for an expert report to be made concerning the feasibility of using the land in any other manner than that in which it had been allocated by the municipality in DATE .

On DATE ORG rejected PERSON ’s claim and found that the land should be divided in accordance with the municipality ’s decision of CARDINAL DATE . That judgment was upheld by ORG on DATE and by ORG on DATE .

On DATE the applicant was issued with an enforcement warrant ordering the delimitation of the border between the applicant ’s land and that belonging to E.

Article CARDINAL of the Code of Civil Procedure reads :

“ ( CARDINAL ) ORG actions shall be examined by the first - instance court within a reasonable time . The criteria for determining of the reasonable length of the proceedings include : the complexity of the case , the conduct of the parties to the proceedings , the conduct of the court . The observance of the reasonable time requirement in examining cases shall be ensured by the court . In examining a specific case , the observance of the reasonable time requirement shall be verified by the higher courts when examining the case on the relevant form of appeal . ”


CASE OF FINANCIAL TIMES LTD AND OTHERS v. THE UNITED KINGDOM

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10

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

On DATE the board of Interbrew , a NORP brewing company , asked its investment bank advisers , ORG ( “ ORG ” ) and ORG , to carry out work on a potential association between GPE and NORP Breweries plc ( “ ORG ” ) , a competitor in the brewing industry , with a view to a possible takeover bid for ORG by Interbrew .

On DATE produced a document in relation to the possible takeover . The document was confidential and contained data which were likely to affect both Interbrew and ORG 's share prices . It formed the basis of a presentation which , on DATE , was submitted to PERSON 's internal mergers and acquisitions department .

On an unknown date a person ( “ X ” ) whose identity is unknown , even by the applicants , came into possession of a copy of the presentation submitted to Interbrew . On DATE X sent copies of a document ( “ the leaked document ” ) to various news media organisations , including the FT , The ORG , The ORG and ORG , from an address in GPE . On GPE 's evidence the leaked document was very similar if not identical to the Interbrew presentation , except for the following : ( a ) the substitution of an offer price for ORG shares of CARDINAL in place of the price of MONEY , which had apparently been in the original presentation ; and ( b ) the insertion of a timetable for making the offer .

On DATE Mr Jones , a journalist at the FT , received a copy of the leaked document from X. At TIME that day , he telephoned Mr PERSON of ORG and told him that he had received the leaked document and that he intended to publish it . Mr PERSON reported the conversation to PERSON , the Chief Executive Officer of Interbrew . PERSON telephoned Mr PERSON and told him , on the record , that Interbrew had carried out research into ORG but that it was not in the advanced stage of preparing an offer . At TIME , the FT published an article on its website stating that Interbrew had been plotting a bid for ORG , that documents seen by the FT indicated that an approach could be made on DATE and referring to the conversation between Mr Jones and PERSON . The article did not state the proposed offer price but gave accurate codenames used for the advisers in the presentation and quoted from the document on the likely positive market reaction and with reference to potential rival bids . The FT published an article in the same terms in its newspaper TIME .

At CARDINAL . on DATE The ORG received a copy of the leaked document from X. In its second edition , which reached the news stands at TIME on DATE , it published an article referring to the “ confidential ” document which it had seen , a supposed approach to ORG “ DATE ” , a plot to bid GBP MONEY for ORG and an offer expected to be pitched at MONEY per share .

NORP At CARDINAL.CARDINALa.m . on DATE ORG reported the FT 's story and the rise in the share price of ORG on ORG on its wire service . ORG received a copy of the leaked document from X on TIME DATE and , at CARDINAL . , published a further article referring to its receipt of the leaked document .

At QUANTITY . on DATE ORG and ORG contacted ORG , which asked PERSON to make a statement . In response , at about CARDINAL.CARDINALp.m . , Interbrew issued a press release confirming that it had undertaken a preliminary analysis of ORG as part of its routine DATE review of the leading brewers of the world ; that the analysis was at a very preliminary stage which might or might not lead to an offer at some time in the future ; but that no approach had been made .

On DATE The ORG received a copy of the leaked document from X. On DATE it published an article referring to the “ secret document ” prepared by ORG and ORG , which it stated had been “ couriered ” to a “ large chunk ” of the business press , and mentioning the leaking of previous bids by Interbrew .

The Independent did not receive a copy of the leaked document directly from X. However , it did take steps to obtain a copy from another source that it knew but undertook not to reveal it . On DATE it published CARDINAL articles about the leaked document , CARDINAL of which stated that the offer price and timetable appeared bogus .

On DATE , in agreement with ORG , published a second statement to the press , alleging that the leaked document contained fabrications . This statement was reported by each of the applicants , who continued to publish articles on the topics of doctored copies and a possible bid .

The impact of this press coverage on the market in shares of GPE and ORG appears to have been significant . Interbrew 's share price at market on DATE was EUR CARDINAL . By TIME DATE it was EUR CARDINAL.CARDINAL . It was EUR CARDINAL.CARDINAL after the press release and at market close . The ORG share price at market close on DATE was MONEY and at market close on DATE was MONEY . The volume of ORG 's shares traded on DATE was MONEY . On DATE it was CARDINAL .

On DATE Interbrew instructed PERSON , the security and risk consultants , to assist in identifying PERSON did not identify X. On DATE Interbrew made a criminal complaint to the Examining Magistrate of the Brussels Court of First Instance , together with a claim for civil damages , against a person or persons unknown .

On DATE launched proceedings against the applicants in ORG following advice from PERSON that access to the original documents might vitally assist the investigation . Given that the applicants were not aware of the identity of X , Interbrew lodged a claim for :

“ CARDINAL . delivery up of documents :

CARDINAL containing or relating to an analysis of [ ORG ] prepared by [ ORG ] and/or [ Lazards ] ; and

CARDINAL evidencing or containing discussions with any journalistic source in respect of the subject matter of CARDINAL ;

disclosure of such documents ;

an order that the Defendants do disclose the name and address of :

CARDINAL any journalistic source who had provided them with the documents referred to in CARDINAL ;

CARDINAL any journalistic source with whom they have had the discussions referred to at CARDINAL.CARDINAL ... ”

At the same time Interbrew , without notice to the applicants , applied for , and was granted , a temporary injunction from ORG in the following terms :

“ CARDINAL . The Defendants must not alter , deface , dispose of or otherwise deal with the documents referred to in Schedule CARDINAL at paragraph CARDINAL thereof

The Defendants must within TIME of service of this Order deliver up the CARDINAL categories of documents referred to at Schedule CARDINAL ... to the custody of solicitors appointed on their behalf to be held until further Order herein ...

The Defendants must within TIME of service of this Order serve on the Claimant 's Solicitors a list of

CARDINAL the Documents within their control

CARDINAL those of the Documents which were formerly in their control but are no longer in their control , explaining what has happened to them

and confirm the facts set out in this paragraph by means of a signed witness statement containing a Statement of Truth also within TIME of service of this Order

PROVIDED THAT this Order shall not require the Defendants to provide any information which would disclose the source of information contained in a publication for which the Defendants are responsible .

SCHEDULE CARDINAL

The Documents

Documents including draft documents and copy documents ( whether received by the Defendants as copy documents or copies by the Defendants ) provided to the Defendants by any third party subsequent to DATE containing or relating to an analysis of [ ORG ] prepared by [ ORG ] and/or [ Lazards ] .

Documents evidencing or containing discussions with any journalistic source subsequent to DATE relating to an analysis of ORG prepared by [ ORG ] and/or [ Lazards ] , together with the envelopes or packaging in which they were delivered to the Defendants and any additional documents contained therein . ”

On DATE , Interbrew sought an order in different terms from the CARDINAL granted on DATE . Instead of the original paragraph CARDINAL of the order , Interbrew sought an order requiring the applicants to serve , within TIME , a witness statement setting out the names and addresses of every person who had provided them with the Schedule CARDINAL(CARDINAL ) documents and every person with whom they had had discussions evidenced or contained in the Schedule CARDINAL(CARDINAL ) documents and , if these identities were not known , the circumstances in which they received the documents , to the best of their knowledge . On DATE , the judge ordered that CARDINAL of the order of DATE be discharged in their entirety .

An expedited hearing on Interbrew 's application for an injunction took place on CARDINAL and DATE before ORG . Interbrew invoked the ORG principle ( see paragraph CARDINAL below ) whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing , he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer .

On DATE ORG ( Interbrew v. PERSON . [ DATE ] EWHC Ch CARDINAL ) ordered delivery up of the documents under the ORG principle in the following terms :

“ CARDINAL . The Defendants must not alter , deface , dispose of or otherwise deal with the documents referred to in Schedule CARDINAL .

The Defendants must within TIME of service of this Order deliver up the documents and other materials referred to at Schedule CARDINAL ... to the Claimant 's solicitor ... ”

The judge found ( at paragraph CARDINAL ) that :

“ What [ X ] has done is deliberately to admix with that confidential information false information ( a lethal concoction ) to create a false market in the shares of the Claimant and ORG , a serious criminal offence . There must be a real risk of repetition , if [ X ] is not identified . Beyond the substantial private interest of the Claimant , there is a substantial public interest in identifying [ X ] and taking all necessary steps to prevent any repetition . As it seems to me , the circumstances of this case are exceptional : vital public as well as individual interests are at stake in securing the integrity of the share market . There is an overriding need for the disclosure sought in the interests of justice and for the prevention of crime ” .

The judge continued ( at paragraph CARDINAL ) :

“ As it seems to me the Claimant has sufficiently explored other avenues before having recourse to this application for relief against the press ... There have been internal investigations conducted at the Advisers ' and the Claimant 's businesses ; the Claimant is conducting inquiries further afield . The Claimant is using investigators of the highest international calibre . The Defendants complain that full details of all the Claimant 's inquiries are not given in the Claimant 's evidence and that this is necessary in order to establish how thorough they have been , but there is no substance in this complaint . The evidence establishes to my satisfaction that full and proper investigations have been made and are continuing . To require disclosure of more details of these investigations is unnecessary even as such a course may prejudice the ongoing inquiries ... The evidence before me ( and most particularly a report by ORG ) establishes that the Claimant needs the information which production of the Documents ought to provide to further and give impetus to these investigations ... I am satisfied that the order is required if progress is to be made whilst the trail is still warm and if an identification is to be made within the time frame necessary to safeguard the interests of the Claimant and the public . ”

The applicants were granted leave to appeal by ORG on DATE and were required to file their written arguments with the court by DATE . By judgment of DATE ORG dismissed the applicants ' appeal ( Interbrew v. Financial Times et al . [ DATE ] EWCA Civ CARDINAL ) . In the leading judgment of ORG , ORG held that in order to justify the exercise of ORG powers to compel production of documents or disclosure of information , Interbrew had to establish that each defendant had facilitated a civil wrong committed by an unknown person against whom they aimed to seek redress . The only civil wrong on which GPE could rely was that of a breach of confidence on the part of the source . While such a breach of confidence had been made out , what had not been made out was a “ bigger and better cause of action in respect of the ' lethal cocktail ' of fact and falsehood , since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort ” ( at paragraph CARDINAL ) .

Sedley LJ went on to consider the approach adopted by ORG as follows ( at CARDINAL ) :

“ Everything proceeded below on the assumption that crimes of forgery and market manipulation were proved . But both , or at least the former , depend upon the falsity of the pages in the document showing bid price and timetable . False they were if one goes on such evidence as was before the court . But by definition their falsity is alleged against an absent and silent accused . We have no way of knowing , any DATE as [ counsel for the applicants ] stressed – the CARDINAL defendants do , whether the source , if cornered , would demonstrate that he had simply assembled authentic documents from different places within GPE , ORG and Lazards .

I have to say that I find this aspect of the ORG procedure troubling . A commercial enterprise which may very well have its own reasons for denying the authenticity of a document gets a clear run against a media defendant which can only , save in rare cases , take a neutral stand on the question . The court of first instance needs to be extremely circumspect before accepting evidence , especially when , as here , it is second- or third - hand , that goes to the heart of the case and can not be controverted ... ”

NORP However , PERSON concluded :

“ DATE . ... I have come to the conclusion , though not without misgiving , that the order for disclosure was rightly made against all the defendants . Nothing which has been put before us suggests that the court will be significantly better placed at an eventual trial than it is now to decide the key issues ; and there is at least some force in GPE 's complaint that its hands are tied vis - à - vis NORP Breweries , and possibly other targets too , unless and until it can prevent a recurrence of this spoiling operation .

... PERSON 's prima facie entitlement to delivery up of the documents is established because DATE and solely because DATE it may enable them to ascertain the identity of the proper defendant to a breach of confidence action relating to the relatively anodyne , though not the explosive , parts of the document . From the sweep of GPE 's original case and the “ lethal cocktail ” on which PERSON founded his conclusions , the basis of the application now shrinks to this little measure . But though little , it is far from insignificant for Interbrew ...

With it , CARDINAL turns to s.CARDINAL of the DATE Act . The section begins by barring any order for disclosure in circumstances such as these , since its very object is to discover the source of information which the defendants have published . Interbrew , however , can invoke CARDINAL of the listed purposes for lifting the bar : that disclosure is necessary in the interests of justice . That it may also go to the prevention of crime can not be ruled out as irrelevant , but it is peripheral because it is not a purpose for which Interbrew themselves are entitled to disclosure . Then is the public interest in the doing of justice sufficient in the particular circumstances of this case to make disclosure necessary ? Reading that question through the lens of the LAW and its jurisprudence , as we are now required to do , the following elements separate themselves out .

First , what is the nature and weight of the public interest in the confidentiality of sources ? The right of free expression enshrined in article CARDINAL is undifferentiated , but as ORG said in PERSON , ' freedom of expression constitutes one of the essential foundations of a NORP society ' , and ' [ p]rotection of journalistic sources is one of the basic conditions for press freedom ' ( paras . DATE , DATE ) . Much judicial authority in this country says the same . The news media , in consequence , enjoy in s.CARDINAL of the DATE Act a high initial level of protection , not in their own but in the public interest .

The entitlement to reverse the balance is prescribed by law , as article ORG ) requires . A required ground for doing so , founded on the no less important public interest in an effective system of justice , is present . Is it then necessary to reverse the balance ? The following elements seem to me to matter here :

• Any invasion of the protection must meet a pressing social need DATE not merely an individual one . This meets the need to counterpose CARDINAL public interest to another . Here the need , in terms of s.CARDINAL , is to enable Interbrew to restrain by court action any further breach of confidence by the source and possibly to recover damages for losses already sustained . In terms of article ORG ) it is to protect the rights of Interbrew .

• There must be no less invasive alternative . While I would not adopt the judge 's approach of simply refusing to second - guess the view of the aggrieved parties ' solicitors , I would infer from the evidence that as much has been done as can at present be done by the use of reputable private detectives to trace the source . I can see that to demand particulars of the admittedly general assertions about this could jeopardise the exercise .

DATE . It seems to me that once the legitimacy of GPE 's intended resort to law is accepted , the relatively modest leak of which they are entitled to complain does not diminish the prospective seriousness for them of its repetition . For the media , on the other hand , the public interest in their freedom to publish is constant , and with it the public interest in the confidentiality of their sources . While I do not think that the character of the material is irrelevant as a matter of law , I agree with ORG in GPE at least to this extent , that it can not be for the court to decide how interesting or important it thinks the material is . That is for journalists and their editors . But it may follow that the more the press decide to make of a story , the greater will be the affected party 's legitimate interest in finding and suppressing its source .

What in my judgment matters critically , at least in the present situation , is the source 's evident purpose . It was on any view a maleficent one , calculated to do harm whether for profit or for spite , and whether to the investing public or Interbrew or both . It is legitimate in reaching this view to have regard not only to what Interbrew assert is the genuine document but also to the interpolated pages ; for whether they are forged or authentic , integral or added , they were calculated to maximise the mischief . To this factual extent the ' lethal cocktail ' is material , despite its legal irrelevance to the earlier stages of the inquiry . The public interest in protecting the source of such a leak is in my judgment not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source . ”

On DATE ORG refused the applicants leave to appeal , following which Interbrew required the applicants to comply with the court order for delivery up of the documents . The applicants have refused to comply . While Interbrew has instituted enforcement proceedings against The ORG , it has not pursued these proceedings .

The exercise of the power to require the delivery up of otherwise confidential information derives from the jurisdiction established by the decision of ORG in ORG [ DATE ] ORG CARDINAL at page CARDINAL :

“ [ The authorities ] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong - doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers . I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did . It may be that if this causes him expense the person seeking the information ought to reimburse him . But justice requires that he should co - operate in righting the wrong if he unwittingly facilitated its perpetration . ”

That power is subject to section CARDINAL of the Contempt of Court Act DATE ( “ the DATE LAW ) which provides that :

“ No court may require a person to disclose , nor is any person guilty of contempt of court for refusing to disclose , the source of information contained in a publication for which he is responsible , unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime . ”

Prior to the proceedings in the present case , ORG had held in ORG v. ORG [ DATE ] CARDINAL All ER CARDINAL that the phrase “ the interests of justice ” in section CARDINAL of the DATE Act was wide enough to include the exercise of legal rights and the ability to seek protection from legal wrongs , whether or not by court action . This interpretation was later confirmed by ORG in ORG v. ORG [ DATE ] CARDINAL WLR DATE .

In GPE , ORG granted an order compelling the ORG newspaper to reveal a source to ORG . The ORG subsequently disclosed its source as PERSON , an investigative journalist . PERSON brought new proceedings to seek an order for disclosure against Mr PERSON and applied for summary judgment on the grounds that the case was indistinguishable from that of the Mirror in the previous LOC case . PERSON submitted that the facts were materially different . ORG granted the order requested but it was overturned on appeal to ORG which held in ORG v. PERSON [ DATE ] EWCA Civ CARDINAL at paragraph CARDINAL that :

“ Protection of journalistic sources is one of the basic conditions for press freedom in a NORP society . An order for source disclosure can not be compatible with LAW unless it is justified by an overriding requirement in the public interest . Although there is a clear public interest in preserving the confidentiality of medical records , that alone can not , in my view , be automatically regarded as an overriding requirement without examining the facts of a particular case . It would be an exceptional case indeed if a journalist were ordered to disclose the identity of his source without the facts of his case being fully examined . I do not say that literally every journalist against whom an order for source disclosure is sought should be entitled to a trial . But the nature of the subject matter argues in favour of a trial in most cases ... ”

The Civil Procedure Rules ( “ LAW ” ) govern procedure in civil proceedings in GPE and GPE . Relevant excerpts of the ORG provide as follows :

“ Rule CARDINAL

( CARDINAL ) The court may at any time order a party to –

( a ) clarify any matter which is in dispute in the proceedings ; or

( b ) give additional information in relation to any such matter ,

whether or not the matter is contained or referred to in a statement of case .

( CARDINAL ) Paragraph ( CARDINAL ) is subject to any rule of law to the contrary .

Rule CARDINAL

( CARDINAL ) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –

( a ) at trial , by their oral evidence given in public ; and

( b ) at any other hearing , by their evidence in writing .

( CARDINAL ) This is subject –

( a ) to any provision to the contrary contained in these Rules or elsewhere ; or

( b ) to any order of the court .

Rule CARDINAL

( CARDINAL ) Subject to paragraph ( CARDINAL ) , the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court , a practice direction or any other enactment requires otherwise .

( CARDINAL ) At hearings other than the trial , a party may , rely on the matters set out in –

( a ) his statement of case ; or

( b ) his application notice , if the statement of case or application notice is verified by a statement of truth .

Rule CARDINAL

( CARDINAL ) Where , at a hearing other than the trial , evidence is given in writing , any party may apply to the court for permission to cross - examine the person giving the evidence ... ”

ORG has adopted a code of conduct which is regularly reviewed and amended as required . The DATE Code of ORG reads , insofar as relevant , as follows :

“ CARDINAL . Accuracy

Newspapers and periodicals must take care not to publish inaccurate , misleading or distorted material including pictures .

Whenever it is recognised that a significant inaccuracy , misleading statement or distorted report has been published , it must be corrected promptly and with due prominence .

An apology must be published whenever appropriate .

Newspapers , whilst free to be partisan , must distinguish clearly between comment , conjecture and fact .

A newspaper or periodical must report fairly and accurately the outcome of an action for defamation to which it has been a party .

Confidential sources

Journalists have a moral obligation to protect confidential sources of information . ”

There have been no significant changes to the above provisions since DATE .

On DATE , ORG adopted a Recommendation ( No . R ( DATE ) CARDINAL ) on the right of journalists not to disclose their sources of information . The Recommendation provides , at Principle CARDINAL , as follows :

“ a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW , paragraph CARDINAL of the Convention . In determining whether a legitimate interest in a disclosure falling within the scope of LAW , paragraph CARDINAL of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member states shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and

ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :

- an overriding requirement of the need for disclosure is proved ,

- the circumstances are of a sufficiently vital and serious nature ,

- the necessity of the disclosure is identified as responding to a pressing social need , and

- member states enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .

c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked . ”