The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON .

On DATE the applicant claimed that he and his children had the exclusive right to lease a flat in PERSON .

On DATE ORG dismissed the action .

On DATE the ORG quashed the first instance judgment .

Since then the proceedings have been pending at first instance . In these proceedings the applicant has been represented by an advocate practising in PERSON .

On DATE the applicant complained about the length of the above proceedings to ORG .

On DATE ORG rejected the complaint as falling short of the formal requirements . The decision states that the applicant failed , despite a warning of DATE , to eliminate formal shortcomings in his submission and to appoint a lawyer representing him before ORG .

On DATE the applicant again filed a constitutional complaint about the length of the proceedings before ORG . In a separate letter dated DATE he requested that ORG should appoint a lawyer to represent him in the proceedings before it . The applicant explained that his only income was an invalidity pension which sufficed just to cover his most urgent needs .

In a letter of DATE a constitutional judge informed the applicant that his new submission was not in conformity with the statutory requirements . The judge noted that the applicant 's information about his income was not certified by the competent authority . Furthermore , in the proceedings before ORG the applicant was represented by an advocate . The constitutional judge 's letter stated that that advocate could also represent the applicant before ORG and that the applicant would have the lawyer 's fees reimbursed in the event that he succeeded in his constitutional complaint . The letter concluded that the applicant 's submission would not be dealt with .

Article CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW guarantees to everyone the equality of rights .

Article CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Article CARDINAL of the LAW , in effect from DATE , entitles individuals and legal persons to complain about a violation of their fundamental rights and freedoms . Under this provision ORG has the power , in the event that it finds a violation of a person 's fundamental rights , to quash the relevant decision or , where appropriate , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated .

Under Section CARDINAL(CARDINAL ) of LAW , plaintiffs in proceedings before ORG have to be represented by an advocate .

Section CARDINALa of LAW provides that ORG can , unless otherwise provided by law , apply in an appropriate manner the provisions of LAW and of LAW . Under this provision and the relevant provisions of LAW , it has been the practice of ORG to accede to a plaintiff 's request for an advocate to be appointed to represent him or her where ORG is satisfied that it is justified by the situation of the plaintiff and where the complaint is not clearly devoid of any prospect of success .


CASE OF FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM (ARTICLE 50)

Costs and expenses award - Convention proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

ORG The case was brought before the ORG by ORG ( " the Commission " ) on DATE . It originated in CARDINAL applications ( nos . CARDINAL , CARDINAL and DATE ) against GPE and GPE lodged with the Commission on DATE by Mr PERSON and PERSON and on DATE by PERSON , who are all CARDINAL NORP citizens .

As regards the facts of the case , reference is made to paragraphs CARDINAL of the ORG ’s judgment of CARDINAL DATE ( " the principal judgment " - Series A no . CARDINAL , pp . CARDINAL ) . The applicants’ complaints were directed against their arrest and detention under criminal legislation enacted to deal with acts of terrorism connected with the affairs of GPE .

ORG In the principal judgment the ORG arrived at the following conclusions as regards all CARDINAL applicants :

( a ) there had been a breach of LAW para . CARDINAL ( article CARDINAL - CARDINAL ) of the LAW , in that although the ORG arrest and detention had been based on a bona fide suspicion that they were terrorists , the explanations furnished by ORG were insufficient to support the conclusion that there was " reasonable suspicion " ; that being so , it was not necessary to go into the ORG further allegation that the purpose of their arrest was not to bring them before the " competent legal authority " but rather to gather information ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and CARDINAL ) ;

( b ) there had been no breach of LAW para . CARDINAL ( article CARDINAL - CARDINAL ) since the reasons for the applicants’ detention had been brought to their attention with sufficient promptness after their arrest ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and CARDINAL ) ;

( c ) it was unnecessary to examine the complaint under LAW para . CARDINAL ( article CARDINAL ) as the applicants had been released speedily before any judicial control of their detention had taken place and it was not for the ORG to rule in abstracto on the scope of the remedies available ( paragraphs CARDINAL - CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and CARDINAL ) ;

( d ) there had been a breach of LAW para . CARDINAL ( LAW ) , in that the applicants had no enforceable claim for compensation before the domestic courts for the breach of LAW para . CARDINAL ( article CARDINAL - CARDINAL ) ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and CARDINAL ) ;

( e ) it was unnecessary to examine the complaint under LAW ) having regard to the findings on LAW paras . CARDINAL and CARDINAL ( article CARDINAL - CARDINAL , article DATE ) ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL and CARDINAL ) .

ORG In written observations of CARDINAL DATE , CARDINAL May and DATE , the applicants had claimed compensation for pecuniary and non - pecuniary damage and reimbursement of their costs and expenses referable to the proceedings before the Convention institutions . The Government had commented on the costs claim on CARDINAL May and DATE but had considered it more appropriate to reserve their submissions as to the compensation claim until the delivery of the judgment on the substantive issues .

As the question of the application of LAW ) was therefore not ready for decision , ORG in the principal judgment reserved the whole of the said question and invited the Government and the applicants to submit their written comments within DATE and , in particular , to notify ORG of any agreement reached between them ( paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL ) .

ORG In accordance with the foregoing invitation and the President ’s directions , there were filed at the registry , on DATE , a memorial of the Government and , on DATE , further observations of the applicants , in which they requested an oral hearing . These documents revealed that no agreement as aforesaid had been reached .

On DATE the Delegate of the Commission lodged observations on the question of the application of Article CARDINAL ( article CARDINAL ) in the present case .

ORG The ORG decided on DATE that there was no need to hold a hearing .


The applicant is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent PERSON , ORG .

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

In DATE the applicant was appointed managing director of finance in ORG ( Nordisk Fjerfabrik Holding Aktieselskab ) , henceforth called ORG , the ultimate holding company in a holding group , consisting of CARDINAL companies , at locations throughout the world . ORG experienced financial difficulties and suspended its payments in DATE . It went bankrupt in DATE .

In this connection a police investigation was carried out which resulted in the criminal prosecution of CARDINAL of the top executives in ORG , including the applicant , and in addition CARDINAL accountants . The applicant was charged with aggravated fraud and offences concerning misleading accounting in a court session held on DATE in ORG ( GPE byret ) .

Investigations were carried out in GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE .

As part of the investigations , the police asked accountants to draw up statements of account for DATE until DATE . The accounts were submitted on DATE and DATE , and as they were comprehensive the expenses incurred thereby amounted to CARDINAL million Danish kroner ( ORG ) .

On DATE the prosecution submitted an indictment consisting of CARDINAL counts with which the applicant , the above CARDINAL other top executives in ORG , as well as the CARDINAL accountants were charged . Counts CARDINAL - CARDINAL concerned the CARDINAL other top executives , counts CARDINAL - CARDINAL concerned the applicant only and count CARDINAL concerned the CARDINAL accountants .

Count number CARDINAL concerned , inter alia , ORG accounts for DATE until DATE , which were sent to ORG , and which the applicant was accused of having manipulated , thereby converting a deficit of ORG CARDINAL , to a surplus of ORG CARDINAL , and the net capital of ORG to DKK CARDINAL million . Furthermore , the net capital contained fictitious assets and questionable transactions from DATE amounting to at least DKK CARDINAL . ORG

Preliminary court sessions were held in DATE and DATE concerning the mental health of CARDINAL of the top executives . Subsequently his case was separated from the others .

At a hearing on DATE the scheduling of the trial was determined to start on DATE . Due to its volume it was expected that the trial would DATE .

During the scheduling period several pleadings were submitted in order to clarify procedural questions , including objections to the statements of account and the appointment of a co - counsel to CARDINAL of the co - accused top executives , and hearings on these issues were held on DATE , CARDINAL DATE and CARDINAL DATE .

The trial commenced on DATE , it was conducted DATE , and lasted for DATE . The applicant , assisted by counsel , the co - accused and CARDINAL witnesses were heard . The documentary evidence consisted of the above statements of account , an opinion of DATE from ORG af Statsautoriserede PERSON ) and a considerable amount of other documentary evidence , which was presented in court during its sessions . The court records ran to CARDINAL pages .

By judgment of DATE , which ran to CARDINAL pages , ORG convicted the applicant and sentenced him to DATE imprisonment . In addition , for a period of DATE he was deprived of his right to establish or to become a manager and/or a member of a ORG board in a limited company , or in a company or an association which would require public approval . Also , he was ordered to pay costs in the amount of DKK CARDINAL . The CARDINAL co - accused top executives were sentenced to DATE and CARDINAL years’ imprisonment respectively , deprived of the above right as well , and ordered to pay costs . The accountants were each sentenced to fines equivalent to DKK CARDINAL,CARDINAL , and each ordered to pay costs in the amount of DKK CARDINAL .

As regards the order to pay costs ORG stated in as far as relevant :

“ ... the prosecution has defrayed expenses in the amount of DKK CARDINAL to the firm of accountants ... for auditing assistance during the case , including preparation of ORG I and II . When determining the share of the legal costs payable by the defendants , the court must make a distribution between the convicted offenders and the ORG taking into account the proportion between the charge and the outcome of the case . Furthermore , in the light of the quite extraordinary level of legal costs in this case , the defendants’ circumstances must be particularly taken into account together with the fact that the consolidation of the cases against [ the applicant and the CARDINAL top executives ] and the cases against the accountants should not be detrimental to the defendants ... ”

On DATE the applicant appealed against the judgment to ORG of Eastern GPE ( PERSON landsret ) . Also the co - accused top executives appealed against the judgment , and the prosecution appealed against the judgment in respect of all the accused .

Preliminary court sessions were held on DATE and DATE during which requests from CARDINAL of the coaccused for a cocounsel were decided , and discussions went on as to the scheduling of the trial and practical problems related thereto . ORG offered the parties to sit DATE a week , but in accordance with ORG recommendation , endorsed by the prosecutor , it was agreed that CARDINAL DATE hearings were to be held . As the permanent courtroom was considered too small it was agreed that ORG should rent a larger room . The trial , which was expected to last for DATE , was scheduled to commence on DATE . Further preliminary hearings were held on CARDINAL DATE and CARDINAL DATE concerning procedural matters such as the use of the statements of account , whether the prosecution ’s appeal relating to one of the co - accused was time - barred , and whether an assistant employed for the case by the prosecution was partial .

The trial in ORG commenced on DATE , it lasted DATE and was terminated by judgment of DATE in which the court upheld the applicant ’s conviction and sentence , but reduced the costs that the applicant had to pay to DKK CARDINAL . Also the co - accused top executives’ conviction and sentences were upheld , but their shares of the costs were reduced as well . CARDINAL of the accountants were convicted to a greater extent than before ORG , CARDINAL to a lesser extent .

Before ORG the applicant and all the co - accused complained that LAW had been violated due to the length of the proceedings . In its judgment ORG stated , inter alia , that a duration of DATE in a case such as the present one with such an extraordinary extent and considerable complexity did not in itself amount to a violation of LAW . Furthermore , it approved of the prosecution ’s decision to join the cases against the accused with the aim of economising the legal process . However , in joining the cases the court found that the proceedings had been unduly prolonged in violation of LAW in respect of the CARDINAL accountants who had only played a minor role in the criminal activities . Thus , CARDINAL accountant , his sentence was upheld , as to the remaining CARDINAL their sentences were reduced , and they were all exempted from paying costs . As regards the applicant and the co - accused top executives the court held :

“ As to the question of whether the case as such should have been terminated earlier , the court notes first of all that the investigation was carried out in respect of all counts at the same time and there is no reason to criticise its extent or duration .

As to the court proceedings they were arranged in agreement with counsels for the defence in both court instances , and there is no reason to criticise the duration hereof or the periods spent on the deliberations and the drawing up of the judgment .

Finally as to the period of scheduling i.e. the period from when the case was brought before the court until the trial actually commenced , this amounted to DATE and DATE both in ORG and in ORG . Of course this period can be expected to last longer in complex cases with several accused than in other cases , but in the present case the length of this specific period may also be imputed to the lack of resources in the court system .

Making an overall assessment of the lengthy proceedings , which only to a limited extent can be imputed to ‘ dead periods’ , namely the excessive periods of scheduling , the court does not find a violation of LAW in relation to [ the CARDINAL named top executives ] or the applicant , who are accused and convicted of aggravated fraud . ”

As regards the sentence imposed on the applicant and the CARDINAL co - accused top executives ORG held inter alia :

“ ORG can concur entirely with ... ORG ... regarding the penal merits of the counts adjudicated and the other circumstances emphasised in the sentencing . In this connection , the High Court states that the fraud is extremely serious and that - apart from the fact that it was committed under heavy pressure from the dominant Chairman of ORG - mitigating circumstances are scarce . On this basis it might be considered to increase the sentences somewhat for [ the applicant and the CARDINAL co - accused top executives ] , but in the view of the burden on [ these ] caused by the length of the proceedings , the court approves the prison sentences ... ”

As regards the order that the applicant pay costs ORG stated :

“ ... it is decided , partly in view of the statement in ORG judgment , partly and particularly in view of the statement above regarding the length of the proceedings ... [ that the applicant shall pay DKK CARDINAL to the ORG ] “

On DATE the Leave to Appeal Board ( Procesbevillingsnævnet ) rejected the applicant ’s request for leave to appeal to ORG ( Højesteret ) .


The applicant , Mr PERSON , a NORP national , was born in DATE and lives at GPE . He was represented before the ORG by Mr PERSON Aguado , of FAC .

The facts of the case , as presented by the parties , can be summarised as follows .

Following a road - traffic accident the applicant brought an action seeking compensation before ORG . In a judgment of DATE , ORG dismissed his claims and gave judgment on the defendant ’s counterclaims , ordering Mr PERSON to pay damages . He appealed to ORG , which on DATE partly overruled the impugned judgment by dismissing both the applicant ’s claims and the defendant ’s counterclaims .

Relying on LAW ( which guarantees the right to a fair hearing ) , the applicant brought an amparo appeal before ORG , which in a decision ( providencia ) of DATE , served on the applicant on DATE , declared that appeal inadmissible .

On DATE ORG , noting that ORG had not within the period prescribed by LAW on ORG availed itself of its right to lodge a súplica appeal against the decision of DATE , declared that decision final . The applicant was so informed on DATE .

Institutional Act on ORG

“ CARDINAL . State Counsel ’s Office shall intervene in all amparo proceedings to uphold the law , the rights of citizens and the public interest protected by law . ”

“ CARDINAL . NORP The decision ( providencia ) referred to in the preceding paragraph ... shall be served on the appellant and on ORG . ORG Office may lodge a súplica appeal against that decision , the time - limit for so doing being DATE . The appeal shall be decided in a judgment ( auto ) . ”

Under NORP law , súplica appeals , in common with similar types of remedy such as reforma or reposición appeals , is a form of appeal enabling a party to the proceedings ( such as a private petitioner or ORG ) to request the court which has decided the case to reconsider its judgment or decision .

Relying on LAW , the applicant alleged that his case had not been tried fairly and within a reasonable time by the NORP courts .

The applicant maintained that the NORP courts had not tried his case fairly and within a reasonable time . He relied on LAW .

The ORG does not have to decide whether the facts presented by the applicant in his application disclose a prima facie violation of the LAW . That is because it considers that in the instant case the final domestic decision , within the meaning of LAW , was ORG decision of DATE , which was served on the applicant on DATE , that is to say DATE before the application was lodged . Admittedly , in a decision of CARDINAL DATE served on the applicant on DATE , ORG found that ORG had not lodged a súplica appeal against the decision dismissing the amparo appeal and declared the decision of DATE final . However , regard being had to its nature and to the conditions governing its exercise in this particular instance , notably the fact that it could only be lodged by ORG , the súplica appeal concerned here can not be regarded as a remedy within the meaning of LAW . It follows that the application must be dismissed pursuant to LAW .

For these reasons , the ORG , unanimously ,

Declares the application inadmissible .


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

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

On DATE ORG of the Moscow Region convicted the applicant of tax evasion . The applicant was sentenced to CARDINAL years’ imprisonment . He started serving his sentence that DATE .

On DATE ORG , on appeal , upheld in part the first - instance judgment and reduced the applicant ’s prison sentence to DATE and DATE .

On DATE the applicant filed a petition with the President of ORG in which he requested a supervisory review of his case . He alleged that the courts had not determined the specific amount of tax evaded and that they had not therefore established that any criminal offence had been committed . He pleaded not guilty and requested that both the judgment of DATE and the decision of the appellate court of DATE should be quashed .

On DATE , following LAW of DATE , the applicant was discharged from serving the remaining term of his sentence and was released from prison .

On DATE the ORG of ORG , upon its President ’s request to uphold the applicant ’s petition , quashed the decision of DATE . In its ruling the ORG stated , inter alia , that the judgment against the applicant did not specify what constituted the criminal conduct under each particular head of the criminal charge . It also found that the cassation instance had exceeded its jurisdiction when it had reclassified CARDINAL episode and convicted the applicant of an offence that was not part of the original criminal charge . Furthermore , the ORG established that the cassation instance had not addressed certain substantive points of the applicant ’s appeal . The ORG remitted the case for a fresh examination by the cassation instance .

On DATE ORG re - examined the case in the light of the finding by the supervisory instance . It remitted the case for reconsideration to the first - instance court .

On DATE ORG of the Moscow Region convicted the applicant of tax evasion and sentenced him to DATE and CARDINAL months’ imprisonment . The same judgment discharged the applicant from the punishment by virtue of LAW of DATE .

The applicant lodged an appeal against his conviction on the grounds , inter alia , that he had already been convicted of the same offence in the first set of proceedings .

On DATE ORG upheld the first - instance judgment on appeal . Addressing the applicant ’s claim that he had been tried twice for the same offence , the court stated that the first conviction had been quashed and that the reopening of proceedings did not constitute a second trial .

After the judgment became final , the applicant attempted to initiate supervisory review proceedings by filing petitions with the President of ORG and with ORG of GPE . His petitions were rejected on DATE and DATE respectively .

Section VI , LAW , of the DATE Code of Criminal Procedure ( Уголовно-процессуальный кодекс РСФСР ) , as applicable at the material time , allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure . The supervisory review procedure ( Articles CARDINAL - CARDINAL ) was distinct from proceedings in which a case was reviewed in the light of newly - established facts ( Articles CARDINAL - CARDINAL ) . However , similar rules applied to both procedures ( Article CARDINAL ) .

Article CARDINAL of LAW provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or , if it was not appealed against , once the time - limit for appeal had expired .

“ The grounds for quashing or varying a judgment [ on supervisory review ] are the same as [ those for setting aside judgments ( which have not become final ) on appeal ] ... ”

“ The grounds for quashing or varying a judgment on appeal are as follows :

( i ) prejudicial or incomplete investigation or pre - trial or court examination ;

( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;

( iii ) a grave violation of procedural law ;

( iv ) misapplication of [ substantive ] law ;

( v ) discrepancy between the sentence and the seriousness of the offence or the convicted person ’s personality . ”

Article CARDINAL of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator - General , the President of ORG of GPE or their respective deputies in relation to any judgment other than those of the Presidium of ORG , and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court . A party to criminal or civil proceedings could seek the intervention of those officials to apply for such a review .

Article CARDINAL of LAW set a limitation period of DATE during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official . The period ran from the date on which the impugned judgment became enforceable .

Under Articles CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure , a request for supervisory review was to be considered by the judicial board ( the ORG ) of the appropriate court . The court could examine the case on the merits , was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence .

The ORG could dismiss or grant the request . If the request was dismissed , the earlier judgment remained operative . If it granted the request , the ORG could decide to quash the judgment and terminate the criminal proceedings , remit the case for a new investigation , order reconsideration by a court at any instance , uphold a first - instance judgment reversed on appeal , or vary or uphold any of the earlier judgments .

LAW provided that the ORG could , in the same proceedings , reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’s advantage . If it found a sentence or legal classification to be too lenient , it was obliged to remit the case for reconsideration .

The Code of Criminal Procedure of DATE , as applicable at the relevant time , provided as follows :

“ Criminal prosecution can not be started , or , if already started , shall be discontinued if ...

CARDINAL ) NORP the absence of a criminal act has been established ;

CARDINAL ) NORP the absence of corpus delicti has been established ;

CARDINAL ) a limitation period applies ;

CARDINAL ) a PERSON providing for amnesty has been enacted and [ the person concerned ] is thereby absolved from punishment ... ;

If the circumstances indicated in DATE , CARDINAL , DATE and DATE are discovered at the stage of examination by a court , the court must continue its examination of the case until it is complete and pronounce an acquittal if grounds CARDINAL or CARDINAL apply , or a conviction if grounds CARDINAL or CARDINAL apply and discharge the convicted person from the sentence . ... ”

Section CARDINAL of LAW of DATE absolved all persons convicted for the first time whose sentence did not exceed DATE , and who had already served CARDINAL of their sentence , from serving the remaining term .

Section CARDINAL of LAW of DATE absolved all persons convicted for the first time and whose sentence did not exceed DATE from serving their sentence .


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

The applicant was born in DATE and lives in GPE , GPE .

On an unspecified date in DATE the applicant ’s father lodged an application with ORG ( Sąd Rejonowy ) for distribution of the inheritance from his late wife . The applicant was a participant in the proceedings .

DATE the court held CARDINAL hearings .

On DATE the court ordered that expert evidence be obtained .

On DATE CARDINAL of the participants challenged the expert opinion .

On DATE the applicant submitted her own proposal to the court for distribution of inheritance .

On DATE the expert submitted his new opinion .

At a hearing on DATE the court proposed that the participants conclude a friendly settlement . CARDINAL of the participants accepted the court ’s proposal .

At a hearing on DATE the court ordered that new expert evidence be obtained . It also ordered the participants to pay an advance to cover the costs of the preparation of an expert report ..

On DATE the court decided that , as the participants had failed to comply with the order of CARDINAL DATE , the costs of the preparation of expert opinions would be temporarily covered by the court .

DATE and DATE , PERSON , CARDINAL of the participants in the proceedings , unsuccessfully challenged the presiding judge CARDINAL times .

On DATE and CARDINAL DATE the court appointed experts to prepare opinions on agriculture and forestry . The experts submitted their reports on DATE and CARDINAL DATE respectively .

On DATE the court held a hearing .

On DATE the Myślenice ORG gave judgment .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal .

On DATE ORG ( PERSON ) refused to deal with her cassation appeal .


CASE OF FERENC ROZSA AND ISTVAN ROZSA v. HUNGARY

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

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE and DATE , respectively , and live in GPE .

The applicants are respectively PERCENT and PERCENT shareholders in ORG By decisions of ORG and ORG , in DATE the liquidation of ORG was ordered and PERSON appointed liquidator .

In DATE the applicants brought an official liability action against the CARDINAL courts involved , claiming damages for the liquidation , which in their view had been ordered unlawfully .

On DATE the ORG dismissed the action , holding that , although the liquidation had indeed been ordered unlawfully , the CARDINAL courts’ culpability was not so extensive as to justify the establishment of their tort liability .

On appeal , on DATE ORG upheld the first - instance decision but changed its reasoning . It held that the applicants had no locus standi in the case , since their company was in liquidation and only the liquidator had the capacity to conduct legal proceedings in its name .

The applicants filed a petition for review with ORG . They pleaded that their claim did not concern any loss suffered by the company itself . Rather , they personally sought compensation for the loss in value of their own shares which they had suffered on account of the unlawfully ordered liquidation .

On DATE ORG dismissed the applicants’ petition , reiterating the position that they had no locus standi in the case . This decision was served after DATE .


The applicant , PERSON , is a NORP and NORP national , who was born in DATE and lives in GPE ( GPE ) .

In DATE , the applicant started a relationship with L. They began living together in ORG ’s flat as from DATE and planned to get married once the applicant would have obtained his divorce from his second wife . At DATE it was confirmed that PERSON was pregnant . In DATE the relationship between the applicant and PERSON broke down and they ceased co - habiting .

On DATE , during PERSON ’s pregnancy , the applicant applied to ORG ( ORG ) to be granted a right of access . This application was rejected by a decision of ORG of DATE . On DATE L. gave birth to a daughter S.

The applicant , on his own initiative , recognised his paternity while the mother first contested it . On DATE she acknowledged that the applicant was the natural father of her daughter .

On DATE the applicant applied to ORG , acting as guardianship court ( Vormundschaftsgericht ) , for a decision granting him a right of access ( GPE ) to his daughter . He also applied for an interim injunction on his right of access . On DATE ORG dismissed this request on the ground that it could not decide before holding a hearing on this question . A hearing was held on DATE .

On DATE the applicant renewed his request for an interim injunction . On DATE ORG again dismissed this request considering that the question of access could only be resolved by means of an expert opinion .

On DATE ORG held a hearing in the presence of the parties , an expert and the applicant ’s former wife as a witness .

On DATE ORG , relying inter alia on a psychological expert opinion of DATE , granted the applicant a right of access to his daughter every DATE in the LOC of ORG ( ORG für soziale ORG ) .

On appeal of the child ’s mother , ORG ( ORG ) quashed this decision on DATE after having heard the applicant , the child ’s mother and a representative of ORG on DATE .

Referring to Articles DATE § CARDINAL and CARDINAL § CARDINAL of LAW ( Bürgerliches Gesetzbuch - see the section of LAW below ) , ORG held that a child should have personal contact with the father since , as a general rule , maintaining personal contact to both parents favoured a healthy development of the child . However , access against the will of the mother must be denied where the best interests of the child warranted such a decision . In the present case , there was serious reason to believe that the animosity between the parents would be detrimental to the child . Unlike the expert , ORG found that granting the applicant a right of access would not help the parents to clarify their respective parental roles , to improve their relationship and to co - operate . In particular , the applicant ’s conduct vis - à - vis the child ’s mother adversely affected the child . He was not willing or capable to respect the legitimate interests of the child ’s mother or the special situation of the child living with her mother . The applicant did not accept that the child ’s mother had put an end to their short relationship which had lasted from DATE . This was shown by the fact that he had been determined to obtain information about her pregnancy from her gynaecologist and to be informed about the address of the clinic where the child was to be born in order to be present at the child ’s birth . Moreover , prior to the child ’s birth , he introduced several court proceedings with a view to being granted a right of access and having his surname added to the child ’s surname . DATE after the child ’s birth , he applied again to be granted a right of access and requested that a coercive fine be imposed on the child ’s mother . Although the applicant could not be criticised for claiming a right of access , his conduct showed that he was seeking a de facto parental authority over the child . Against this background , ORG found that , if the applicant were granted a right of access , he would oppose any decision by the mother and conflict and numerous new court proceedings would be unavoidable . ORG concluded that , in these circumstances , the relationship between mother and child would continuously be disturbed . This would not be in the child ’s best interests .

On DATE the applicant lodged a constitutional complaint with ORG ( Bundesverfassungsgericht ) .

On DATE a panel of CARDINAL judges of ORG refused to entertain this complaint .

On DATE , after the entry into force of the amended Law on Family Matters ( Reform zum Kindschaftsrecht - see the section of LAW below ) , the applicant applied again to ORG for a decision granting him a right of access to his daughter .

On DATE ORG heard the parties and a social worker of GPE . The social worker stated that he had made a visit to the applicant ’s home where the latter lived with his DATE daughter PERSON According to the social worker , there was no indication that granting the father a right of access would be contrary to the interests of S. He found , however , that for reasons of practicability the strained relations between the parents should first improve .

On DATE ORG appointed a psychological expert to assess whether granting the applicant a right of access would adversely affect the child ’s well - being .

On DATE the expert informed the court that , due to his excessive workload , he was not in a position to commence his assessment before DATE .

On DATE and DATE the applicant applied to ORG for provisional measures granting him a right of access to his daughter .

On DATE the applicant appealed to ORG complaining that ORG failed to take the required action . He further applied for an interim measure granting him a right of access to his daughter .

On DATE ORG dismissed the applicant ’s request for interim measures considering that the unusually strong tensions existing between the parents made it necessary to await the expert opinion with a view to determining the question of access . According to ORG , to grant such a right provisionally would be more likely to be disadvantageous than advantageous to the child ’s well - being .

Thereafter , the applicant unsuccessfully instituted various proceedings challenging the judge of ORG , PERSON , and , subsequently , the judges PERSON , NORP S. of the Hamm Court of Appeal ( GPE ) for bias . The applicant also challenged the psychological expert on the ground that he had refused to indicate whether or not he intended to reply to all the questions of ORG , including those which , in the applicant ’s opinion , were unlawful . Furthermore , the applicant contested the expert ’s impartiality alleging that , as the appointed court expert , he might be influenced by the well - known hostile attitude of judge PERSON towards men .

In a letter of DATE the applicant informed ORG of his intention not to co - operate any further with the expert and applied for an immediate decision .

On DATE ORG , sitting in a panel of CARDINAL judges , refused to entertain the applicant ’s constitutional complaint lodged on DATE .

On DATE the applicant again requested ORG for an interim injunction granting him a right of access to his daughter .

By a decision of DATE , ORG dismissed the request .

On DATE ORG rejected the applicant ’s application of DATE to be granted a right of access . In reaching the above decision , ORG had regard to its decision of DATE , according to which it was not in the best interests of S. to grant the applicant a right of access . Pursuant to LAW , as drafted by the amended LAW , this decision might be open to discussion should the circumstances on which the decision was based change . However , with a view to establishing the relevant new facts on this question , the court found to be dependent on the assistance of the psychological expert . Due to the applicant ’s refusal to co - operate with that expert , this question could not be resolved and the requested right of access had to be denied .

The applicant appealed against the CARDINAL above decisions to ORG .

On DATE the ORG dismissed the applicant ’s appeal against these decisions .

On DATE the applicant lodged a constitutional complaint against this decision with ORG and requested for interim measures .

On DATE ORG , sitting in a panel of CARDINAL judges , refused to entertain both the applicant ’s constitutional complaint and his request for interim measures .

On DATE the applicant applied to ORG ( PERSON ) to be informed of the child ’s whereabouts . On DATE he requested ORG to be granted a right of access . He also applied for an interim injunction . He stated that the previous court decisions were in breach of fundamental and human rights and had to be revised in the light of the quickly changing circumstances of the child . He alleged that the child ’s mother was a member of a radical feminist sect which professed the superiority of women over men and was said to perform strange rituals , including the killing of children . As soon as she had learned that she was expecting a healthy daughter , she gave up her feigned plan to get married and , with the assistance of NORP female civil servants and judges , deprived him of the common child .

On DATE ORG rejected the applicant ’s requests for reasons of competence . It considered that ORG was the competent court having regard to the residence of the child ’s mother .

On DATE the ORG dismissed the applicant ’s appeal against this decision on the ground that the applicant had failed to request the transfer of the case to the competent district court .

On DATE a panel of CARDINAL judges of ORG refused to entertain the applicant ’s constitutional complaint lodged against this decision and dismissed the applicant ’s request for an interim injunction .

The relevant provision of LAW ( ORG ) concerning custody and access for a child born in wedlock was worded as follows :

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .

NORP The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under LAW , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child ’s interests . The guardianship court shall rule on any dispute over the right to information .

NORP Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows :

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

“ CARDINAL . NORP The person having custody of the child shall determine the father ’s right of access to the child . LAW , second sentence , applies by analogy .

NORP If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Article CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child ’s personal circumstances is set out in LAW .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

The statutory provisions on parental authority and access are to be found in LAW . They have been amended on several occasions and many were repealed by the amended LAW ) of DATE ( ORG ( PERSON - BGBl ) DATE , p. CARDINAL ) , which came into force on DATE .

Article CARDINAL § CARDINAL reads as follows :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . Parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Pursuant to LAW , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s welfare would be put at risk . The family courts may order that the right of access is exercised in the presence of a third party , such as a ORG authority or an association .


Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

The applicant and his wife , ORG , had a child , PERSON , born on DATE . On DATE the NORP ORG granted the couple ’s divorce and the mother was granted custody of the child . The applicant was ordered to pay child support and was granted the right to have personal relations with the child and contact rights , as follows : at the child ’s home on DATE from TIME and at the applicant ’s home on DATE from TIME

Relations between the parties continued to deteriorate , and the contacts between the applicant and his former wife became increasingly turbulent , even in the presence of the child . It therefore became difficult for the applicant to see A. without a conflict occurring between the adults involved .

On DATE the applicant brought an action for custody of his child , asking , alternatively , for an extension of his contact rights . He pointed out that he had not seen his son for DATE , as his former wife and her family had forbidden all contact . The GPE ORG gave judgment on DATE . It noted that the relations between the parents had deteriorated and that the mother was obstructing all contact between the father and his son , being inflexible and omitting to communicate important information about the child to the applicant .

’s request for modification of the visiting times . It ruled :

“ Dismisses the plaintiff ’s requests for modification of the right to personal relations with the child , namely to accommodate the minor in [ the plaintiff ’s ] home . ”

The court ordered ORG to communicate with the applicant about the child and to allow them to speak on the telephone .

The applicant appealed , pointing out that not only had the court dismissed his claims , but it had also restricted his contact rights by no longer allowing him to take his son to his home .

On DATE the ORG and ORG of the GPE local council ( “ ORG ” ) , acting at ORG request , visited the applicant ’s home , interviewed him , and concluded that he was in terms of his psychological and material situation a fit and proper person to take care of his child .

On DATE ORG upheld the previous judgment , on the ground that the best interests of the child required that he remain resident with his mother ; it gave no answer to the applicant ’s representation about the restriction on his contact rights .

The applicant appealed on points of law , seeking mainly to be granted custody of the child . He did not expressly complain about the restriction of contact rights perceived by him . ORG dismissed his claims in a final decision of CARDINAL DATE .

On DATE the applicant sought revision of the previous decision , on the ground that by limiting his visiting rights the courts had decided ultra petita , to his disadvantage . On DATE ORG dismissed his request as out of time . The applicant did not appeal against that decision .

According to the applicant , his subsequent attempts to see the child remained unsuccessful , as , encouraged by the decision of CARDINAL DATE , the mother refused to allow him to enter her home or to take the child away with him .

On DATE lodged a request for modification of the contact schedule . On DATE ORG set contact TIME for the applicant , DATE , on DATE and DATE from TIME at the child ’s home . Appeal proceedings are currently pending with ORG .

During the new custody proceedings , on DATE the applicant requested by means of an urgent procedure ( ordonanţă preşedinţială ) a residence order in his favour , but on DATE ORG dismissed that request , on the ground that a change in residence required serious consideration , which could not be done in an expeditious procedure .

The decision was upheld by ORG in a final decision of DATE .

On DATE the applicant lodged a new request for interim measures , seeking modification of the contact schedule . In particular , he complained that relying on the judgment of DATE , ORG had since refused to allow him to take the child to his home .

NORP The GPE ORG gave its ruling on DATE . It examined the previous decisions rendered in the matter of residence and contact rights between the parties , and evidence of the recent deterioration of the former spouses’ personal relations , as well as the written answers given by ORG to the questionnaire addressed to her by the applicant through the intermediary of the court , on the manner in which she was allegedly obstructing the exercise of his contact rights . The court also took note that the applicant refused to answer the questions addressed to him by ORG through the court on the manner in which he was exercising his contact rights .

On the basis of the evidence in the file , the court noted that custody and contact rights had been established by the decision of DATE , and that on DATE additional requests by the applicant had been dismissed , apart from the right to obtain information about the child and to speak with him on the telephone . The court further observed that on several occasions the applicant had breached the contact schedule by trying to take the child outside the times set in the court order or by not returning the child on time to the mother ’s home , and that the mother had been forced to seek help from the authorities ( bailiffs and police ) to get her child back . It also noted that the applicant had exhibited violent behaviour towards the mother in the presence of the child , and that on several occasions he had tried to take the child from ORG by force .

Relying both on LAW and on the provisions of the new LAW , the court stated that the right to maintain personal relations with the child could not be exercised to the detriment of the child ’s best interest . The court reiterated that its role was to decide on a temporary agreement , as the merits of the residence rights were being examined by a different court . It noted the tense situation between the parents , and considered that it was not in the child ’s best interest for them to have joint custody or for the applicant ’s visiting rights to be extended .

It therefore dismissed the applicant ’s request .

In a final decision of DATE ORG dismissed as out of time the appeal lodged by the applicant against the decision rendered by ORG on DATE .

DATE on , the applicant and ORG lodged several criminal complaints against each other , the applicant accusing his former wife of breaching his right to maintain personal relations with his child by not allowing him contact with his son , by denigrating him in front of the child , and by repeatedly changing the child ’s place of residence , while ORG accused the applicant of causing a public breach of the peace when trying to visit A. in her home , and of keeping the child longer than allowed by the court order . They were both fined for their behaviour , the prosecutor and criminal courts acknowledging the bad relations between the parents and finding that both of them had tried , after the divorce , to cut the other parent off from the child , thus failing on several occasions to respect the contact schedule .

In addition , by a prosecutor ’s decision of DATE the applicant was fined for hitting PERSON , who had tried to stop him from forcibly taking the child from ORG ’s arms on the way to his kindergarten .

NORP In DATE the applicant sought the assistance of ORG to persuade the mother to comply with the court decisions granting him contact rights . A social worker visited ORG ’s home , assessed it as a suitable home for the child , advised the mother on the importance of allowing the child to maintain normal relations with both parents , and explained to her that the conflicts between her and her former spouse were jeopardising the child ’s development .

In DATE the applicant made a new similar request . A social worker visited ORG and the child in their new home and discussed the situation with the mother , drawing her attention to the child ’s right to maintain relations with his father and the extended family , but also to the importance of protecting the child from any form of abuse or neglect . A.A.C. informed ORG that at that moment the applicant was exercising his contact rights at the child ’s school , as each visit to her home ended in open conflict between the adults .

NORP A.A.C. also sought ORG assistance in DATE , when the applicant refused to return the child to her home after a visit .

The applicant and his former spouse continued to complain to ORG about various obstructions to their rights over the child . As a consequence , in DATE the experts of the ORG met with the parents to seek a workable solution for the exercise of their respective rights . A further meeting was held in DATE . On both occasions the parents failed to reach a satisfactory compromise .

NORP In various reports on the applicant ’s case , ORG found that the child was developing well and that the mother was providing an excellent environment for his upbringing .

The former spouses sent each other several notifications , through bailiffs’ offices ( on DATE and DATE on behalf of the applicant and on DATE on behalf of ORG ) , asking for the contact schedule established by court orders to be adhered to .

The relevant domestic legal provisions are set out in GPE v. GPE , no . CARDINAL , § § DATE , DATE , and GPE v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE in GPE . He is represented before the ORG by Mr W. Krahn - Zembol , a lawyer practising in PERSON , GPE . The respondent Government are represented by PERSON , PERSON , of ORG .

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

The applicant is the owner of a plot of land . He lives on these premises and has been using his property to run an amateur poultry farm since DATE .

On DATE ORG ( PERSON ) issued a building license to ORG ( “ T - AG ” ) , a shareholding company with the NORP ORG as its majority shareholder . The building licence entitled ORG to expand an existing and legally erected antenna on the plot of land adjacent to the applicant ’s LOC and to install a mobile phone base station at a distance of QUANTITY from the applicant ’s house .

On DATE the applicant filed an objection ( Widerspruch ) with ORG with the aim to have the licence revoked . He alleged that the radiation emanating from the base station caused him insomnia and serious health problems including tinnitus and cardiac arrhythmia . Furthermore , the breeding of his poultry had been seriously disturbed with the fledglings not hatching at all or with serious deformations . He finally complained that the adjacent base station reduced the commercial value of his own plot of land .

On DATE ORG rejected the applicant ’s objection . It noted that the radiation emanating from the base station complied with the standards prescribed by the relevant safety guidelines for exposure of the public to radio - frequency energy issued by ORG in DATE ( CARDINAL . PERSON des ORG , see relevant domestic law below ) . In the absence of conclusive scientific evidence to the contrary , it had to be assumed that no health damages could be expected .

On DATE the applicant lodged a motion with ORG ( Verwaltungsgericht ) . Submitting several medical attestations , he alleged that his health problems as well as the breeding anomalies of his poultry had been caused by radiation emanating from the base station . For lack of conclusive scientific evidence , it was impossible to evaluate the risks emanating from base stations , in particular with respect to so - called “ non - thermal effects ” ( effects which have not been caused by warming up biological tissues ) . Accordingly , a number of experts regarded the relevant safety guidelines to be insufficient . In order to prove the existence of a broad scientific discussion on health risks caused by base stations , the applicant submitted several scientific reports . He requested ORG to hear expert opinion on the question as to whether there existed a causal link between his diseases , those of his poultry and the radiation emanating from the base station and as to whether the pertinent safety guidelines were sufficient to protect neighbours from harmful effects of radiation .

On DATE ORG rejected the applicant ’s claim , finding that the base station complied with the relevant legal provisions . ORG noted , firstly , that the radiation emanating from the base station was in accordance with the safety guidelines for exposure of the public to radio - frequency energy . According to an attestation issued by ORG on DATE , the safety distance to be observed amounted to QUANTITY , while the applicant ’s house was removed QUANTITY from the base - station .

With regard to the applicant ’s right to the protection of his health as guaranteed by LAW of LAW held that the Government , when drafting the safety guidelines , had considered all relevant scientific information and stayed well within its margin of appreciation . With regard to the scientific reports submitted by the applicant , the ORG found as follows :

“ According to the current state of scientific research , there exists no unambiguous theory of causation which would allow proving non - thermal effects of electromagnetic fields . Taking into account the reports and publications submitted by the plaintiff , in particular the publication on the international conference on mobile phone base stations held in GPE on DATE , the necessity of preventive measures with regard to non - thermal effects remains controversial within the scientific community . The positive obligation under LAW of LAW does not require to take into account unconfirmed scientific findings . ”

ORG saw no need to obtain further evidence , as the courts were not required to raise data on scientifically unconfirmed issues .

On DATE the Rheinland - ORG ( Oberverwaltungsgericht ) refused to grant the applicant leave to appeal . Mainly confirming ORG reasoning , it found that in the absence of any substantial scientific confirmation that the safety guidelines were completely inadequate ( völlig unzulänglich ) , there was no reason to take the requested evidence . With regard to the applicant ’s alleged health problems , ORG found as follows :

“ The medical attestation by the general practitioner GPE dated DATE , submitted by the applicant in the administrative proceedings , does not confirm that the unspecified health problems which are listed therein have been caused by the mobile phone base station . The same applies to the medical opinion of PERSON . dated DATE , who merely described the plaintiff ’s health problems on the basis of earlier medical reports – apparently without having examined him personally – as typical health problems of persons who lived in the direct vicinity of mobile phone stations and referred to earlier scientific reports dealing with the effects of high frequency radiation . This medical opinion is couched in such general terms that it does not allow assuming a possible causation in the specific case . In the absence of any conclusive , precise indications , but only based on assumptions regarding a causal connection between the phone station and the plaintiff ’s health problems , there was no reason to take the requested evidence by hearing expert opinion , having regard to the limits set in the safety guidelines and the present state of scientific research ; the more so , as the distance between the plaintiff ’s house and the phone station exceeds the safety distance prescribed in the safety guidelines by far . ”

On DATE the applicant raised a constitutional complaint , alleging a violation of his right to life and physical integrity as guaranteed by LAW of LAW .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicant ’s complaint as being ill - founded .

It noted that the relevant safety guidelines were based on the concurring recommendations issued by ORG ) , ORG ( ICNIRP ) and ORG , ORG ) . They were based on verified health risks caused by the warming up of biological tissues . The Government had refused to adopt further security measures for lack of conclusive scientific evidence . ORG PERSON ) had put the ORG under an obligation to submit a report whenever new research results on the evaluation of possible long - term health risks caused by radio - frequency energy appeared .

ORG found that the Government was not obliged to tighten the safety guidelines as long as there was no reliable knowledge as to the dangerousness of high frequency radiation . When fulfilling its obligations under LAW of LAW , the Government disposed of a wide margin of appreciation , which allowed to consider the competing public and private interests . The positive obligation under the constitution did not stipulate that any possible security measure had to be taken . A violation of that obligation could only be established if the public authority did not provide for any security measures at all or if the measures taken were completely inadequate or completely insufficient to provide the required protection . There was no obligation to take precautions against merely hypothetical dangers .

With regard to the lower ORG alleged obligation to take evidence on the current standard of scientific knowledge on the dangerousness of high - frequency radiation , ORG found as follows :

“ In areas of complex situation of danger ( komplexe PERSON ) such as the present one , where no conclusive scientific evidence exists , the Government in their function as a secondary lawmaker ( PERSON ) enjoy an appropriate margin of appreciation . In such a situation of uncertainty the ORG ’s positive obligations require the courts neither to verify inconclusive scientific findings by means of the procedural law , nor to control the ORG ’s decision by evaluating the relevant safety limits according to the latest state of research . It is primarily up to the Government to constantly observe and evaluate the scientific progress in order to take further security measures if this appears to be necessary . A violation of the Government ’s duty to adjust the guidelines can only be established if it becomes clear that a regulation aimed at the protection of health which had once been in accordance with the law becomes unconstitutional because of new scientific findings or a change of the factual situation . ORG respected this limited scope of judicial review by refusing to make an independent risk assessment on the basis of evidence taken in court as long as there existed no research results of considerable scientific value regarding the inadequacy of the present safety limits . ”

ORG further considered that this distribution of the burden of responsibility between the executive power and the courts duly took into account their different capacities to assess the relevant facts . With a view to the broad international research in this area , which had not yet rendered any definite results , it was currently impossible to evaluate the situation by merely examining solitary expert reports . An adequate evaluation was only possible by constant observation of all research results in the different scientific areas . This task was carried out by several international and national scientific commissions . ORG found that the necessary overall examination could not be attained by taking evidence in individual court proceedings . The general scientific progress was not sufficiently advanced to enable the lower courts to independently evaluate such risks .

ORG finally found that the lower courts had not been obliged to hear expert opinion on the applicant ’s allegations that his own health had been damaged by radiation . In the absence of a scientifically confirmed examination method , the applicant had failed to submit sufficient evidence that an examination of his state of health could render any new results .

The establishment and operation of installations which may have harmful effects on the environment are regulated by ORG ( ORG ) . The installation in the present case was not subject to licensing under this act . However , ORG , when deciding on the building licence , was under an obligation to examine whether the base station was compatible with the regulations of LAW , the relevant provisions of which read as follows :

Article CARDINAL

Obligations of Operators of Installations not Subject to Licensing

“ ( CARDINAL ) Installations not subject to licensing shall be established and operated in such a way that

harmful effects on the environment which are avoidable according to the state of the art are prevented ,

harmful effects on the environment which are unavoidable according to the state of the art are kept to a minimum , and

wastes produced during the operation of such installations can be duly disposed of . ”

Article CARDINAL

Requirements Concerning the Establishment , Nature and ORG to Licensing

“ ( CARDINAL ) ORG is authorised , after hearing the parties concerned , to provide by ordinance , with the consent of ORG PERSON ) , that the establishment , nature and operation of installations not subject to licensing satisfies specific requirements with a view to protecting the general public and the neighbourhood from harmful effects on the environment ... as well as taking precautions against such harmful effects on the environment , which means in particular that

the emissions released from such installations shall not exceed specified limits ”

On DATE ORG iussed an ordinance under LAW of LAW ( CARDINAL . PERSON des ORG ) . In its first appendix , the Government set specified limits which must not be exceeded by high - frequency installations .

The proceedings before ORG are governed by LAW Verwaltunsgerichtsordnung ) , LAW of which reads as follows :

Article CARDINAL

“ ( CARDINAL ) The ORG examines the facts of the case ex officio . It is not bound by the parties’ submissions or by their requests to take evidence . ”


CASE OF MERYEM ÇELİK AND OTHERS v. TURKEY

Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary and non-pecuniary damage - award

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicants are NORP nationals and live in the NORP district of PERSON .

The applicants are the close relatives of the CARDINAL persons who went missing ( PERSON , Aşur Seçkin , ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) and CARDINAL person who was allegedly killed ( PERSON ) in DATE , during an operation conducted by security forces in the GPE hamlet of GPE , in the NORP district of PERSON . The inhabitants of ORG had been village guards prior to the events giving rise to the present application . The relationship between the applicants and their missing relatives is as follows :

PERSON wife of PERSON ;

ORG - wife of ORG ;

PERSON - wife of PERSON ;

PERSON - wife of PERSON ;

PERSON brother of PERSON ;

PERSON wife of PERSON ;

ORG - wife of ORG ;

PERSON wife of PERSON ;

Şakir Öztürk- brother of PERSON ;

PERSON of PERSON ;

PERSON partner of ORG ;

PERSON - partner of PERSON ;

PERSON -partner of Aşur Seçkin ;

NORP - wife of PERSON .

According to the ORG submissions , on DATE military and gendarmerie forces arrived in GPE . The inhabitants of the hamlet were told by members of the security forces to gather at the helicopter landing pad , which was in the main square . The men of the village were stripped naked and beaten . CARDINAL of the applicants , PERSON and PERSON , who were pregnant at the time of the events , were also beaten when they protested against the security forces’ conduct and both eventually suffered miscarriages . Furthermore , PERSON was killed by a non - commissioned gendarmerie officer , a certain PERSON , when he did not obey the order to gather in the main square .

The security forces set fire to the houses in the hamlet . Subsequently , ORG , ORG , Aşur Seçkin , PERSON , PERSON , PERSON and PERSON were put in military vehicles by the soldiers to be taken to the military base . On the way to the base , the soldiers stopped CARDINAL cars in which CARDINAL villagers were travelling . The soldiers let the CARDINAL children in the cars go , but arrested PERSON , PERSON , PERSON , PERSON , PERSON and ORG . The soldiers then set fire to the ORG cars .

The applicants and other villagers were forced to leave ORG and GPE by the security forces . They then crossed the border into GPE . In that respect , according to a document dated DATE , drafted and signed by members of the administrative council ( including the mayor ) of GPE , there was an armed clash in GPE on DATE and all property in the hamlet was burned . The document further states that the inhabitants of ORG were forced to leave the hamlet soon afterwards and flee to GPE .

DATE , the applicants lived in the PERSON refugee camp , which had been established by the ORG High Commissioner for Refugees , in northern GPE . In DATE , following the closure of the camp by ORG , the applicants moved to ORG , a city in northern GPE . During the autumn of DATE they finally returned to GPE and began living in PERSON .

On an unspecified date , criminal proceedings were brought against CARDINAL people who had lived in the TIME refugee camp , including CARDINAL of the applicants , PERSON and ORG , who were charged with aiding and abetting members of the ORG ( ORG of Kurdistan , an illegal organisation ) while living in the camp .

On DATE ORG acquitted the accused , finding that the charges against them were not proved beyond reasonable doubt .

In DATE a member of parliament , PERSON , visited PERSON . Some of the applicants met PERSON PERSON and told him that in DATE one person had been killed , CARDINAL others had disappeared and CARDINAL of the applicants had suffered miscarriages following a military operation in their hamlet . Mr PERSON then requested ORG attached to ORG ( “ ORG ” ) to initiate an investigation into the ORG allegations . On DATE a newspaper published an article about Mr PERSON ’s request .

On DATE the chair of ORG , Dr PERSON , sent a letter to Mr PERSON informing him of the findings in the investigation conducted into the alleged events . She stated that in DATE a number of people from the ORG hamlet of GPE had become village guards . Some of them , including PERSON , PERSON , PERSON and PERSON ( the relatives of the first , seventh , thirteenth and tenth applicants , respectively ) , had then made a deal with the ORG that it would not perpetrate acts of violence in the village in exchange for logistical support such as a DATE ’s salary from each village guard , food , shelter and ammunition . In DATE and DATE the village guards had helped members of the ORG to ambush security forces . In the first incident , CARDINAL members of the security forces had lost their lives and QUANTITY of them had been injured , and in the second incident CARDINAL members of the security forces had been killed . According to the report , as a result of pressure from the ORG the villagers moved to the ORG camp in northern GPE in DATE . Following the closure of the ORG camp by ORG , the villagers had returned to their homes in DATE . QUANTITY persons who had been involved in the illegal activities of the ORG had then surrendered to the authorities and CARDINAL of them had been put on trial after having been questioned . However , the residents of the Ormancık hamlet , particularly the women who had been questioned by the authorities on their return , had not mentioned anyone having been killed . Nor had they made any such allegations to the authorities . Consequently , it was considered that the allegations were unfounded .

On DATE , after having read the above - mentioned newspaper article ( see paragraph CARDINAL above ) , the PERSON public prosecutor asked the PERSON public prosecutor to open an investigation into the allegations .

In DATE and DATE , PERSON , PERSON , ORG , PERSON , PERSON , ORG , PERSON , PERSON , PERSON and PERSON made statements before the PERSON public prosecutor , through interpreters , as they did not speak NORP . They all maintained that , following the security forces’ arrival at the hamlet , they had been forced to gather in the main square , whereupon the men of the village had been beaten . They stated that they did not know the reason why the security forces had come to the hamlet . They alleged that the security forces had illegally confiscated their belongings , such as money and jewellery , and had destroyed their houses . They further contended that a gendarmerie officer named PERSON had killed PERSON and that CARDINAL men had been taken away by soldiers . NORP , PERSON wife , maintained that they could not bury his husband as they had to leave the hamlet immediately after the killing and that she had been told that PERSON corpse had been buried where he had been killed by villagers from another hamlet . The applicants stated that the soldiers had taken CARDINAL other inhabitants of ORG into custody while driving to the military base . The applicants maintained that they had been told that their relatives had subsequently been killed and their corpses left in the vicinity of the military base . They further alleged that a lieutenant colonel known as “ PERSON ” had told the villagers that they were traitors and did not deserve to live in GPE , and that they should go to live in GPE , GPE or GPE . The inhabitants of the hamlet had then been coerced into leaving the hamlet and , subsequently , the country . They had been forced to go to GPE by members of the ORG . PERSON and PERSON further maintained that they had been pregnant at the time of the incident and that they had both suffered miscarriages as a result of having being beaten by the security forces . The applicants requested that those responsible for the killing of PERSON and the disappearance of the CARDINAL other villagers be found and punished .

The PERSON public prosecutor also took statements from ORG , who had allegedly been the commanding officer of the soldiers who had gone to ORG , as well as from the non - commissioned gendarmerie officer , ORG They both denied the ORG allegations .

On DATE , upon the request of the PERSON public prosecutor , the military forces sent a letter to the public prosecutor ’s office stating that soldiers had arrested CARDINAL villagers and taken them to the GPE military base . The villagers had been released after questioning . However , Aşur Seçkin had died immediately afterwards as a result of gunshot wounds received from an unknown source while trying to escape to join the ORG .

On DATE the PERSON public prosecutor drew up a report ( fezleke ) in which he set out the developments in the investigation . In his report , the public prosecutor identified GPE and GPE as the “ accused ” and PERSON , PERSON , ORG , PERSON , PERSON , ORG , PERSON , PERSON , PERSON and PERSON as the “ complainants ” . The offences allegedly committed by the accused were defined as homicide , aggravated theft ( gasp ) , the causing of a miscarriage , the forced evacuation of a village and the burning of vehicles . According to this report , on DATE , in the vicinity of the ORG hamlet , CARDINAL soldiers had been killed and QUANTITY soldiers wounded , in an ambush set up by members of the ORG with the aid of a group of village guards from the hamlet . Subsequently , a group of soldiers under the command of Lieutenant Colonel GPE and non - commissioned officer PERSON had arrived at the hamlet . The PERSON public prosecutor cited the allegations of the applicants who had made statements in DATE and DATE and the contents of the letter from the military forces dated DATE . The public prosecutor concluded that the ORG had jurisdiction to deal with cases involving offences allegedly committed by members of the security forces and referred the investigation file to the PERSON public prosecutor ’s office with a request to punish the accused for the offences cited in the report .

On DATE the PERSON public prosecutor declined jurisdiction and sent the file to ORG for authorisation to investigate the actions of the members of the security forces , pursuant to ORG CARDINAL and CARDINAL ( b ) of Legislative Decree no . CARDINAL and ORG .

On DATE ORG decided not to authorise the prosecution of GPE and GPE In its decision , ORG noted that the complainants had maintained that they had not known the accused . ORG further stated that the ORG account of events was hypothetical and that the accused officers had not been in ORG on DATE and furthermore that ORG had never been there .

The decision of DATE was not served on the complainants . However , as decisions not to prosecute made by district councils were subject to an automatic appeal to regional administrative courts at the material time , the decision was then referred to ORG .

On DATE ORG upheld the decision not to prosecute GPE and GPE This decision was not served on the complainants .

On DATE the applicants appointed PERSON as their legal representative .

On DATE Mr PERSON applied to the PERSON public prosecutor ’s office for the case to be referred to ORG , and requested information concerning the outcome of the investigation .

On DATE the ORG public prosecutor sent Mr PERSON a copy of the decisions of ORG and ORG .

On DATE he lodged the present application with the ORG .

On DATE Mr PERSON submitted to the ORG a letter dated DATE from the president of ORG , stating that review decisions of this type were not communicated to the parties . The president noted that such judgments were sent to the relevant domestic authorities , together with the investigation files .

On DATE , Mr PERSON also submitted a document signed by members of ORG and CARDINAL witnesses , in which the latter declared that PERSON , PERSON and PERSON had been the partners of Aşur Seçkin , PERSON and PERSON , respectively , to whom they had been married according to NORP traditions .

The relevant domestic law and practice applicable at the material time can be found in the judgment of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ECHR CARDINALII ) .


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

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

The applicant is a ORG judge . Pursuant to LAW No . CARDINAL/CARDINAL on ORG and ORG , judges’ pay is to be adjusted proportionally to the actual increase or decrease in the average salary of persons employed within the national economy where such an increase or decrease exceeded MONEY in the course of DATE .

On DATE ORG . CARDINAL . It introduced an amendment to the Remuneration of Judges and LAW of DATE in that the procedure of adjustment of the pay of judges provided for in LAW was not to be applied during the period from DATE to DATE . As a result , the applicant ’s pay was not adjusted , leading to an earning difference of CARDINAL NORP korunas .

By virtue of Act No . CARDINAL , a similar adjustment of the remuneration of the President of GPE , of the members of ORG and of the Government , of the constitutional judges as well as of other high ranking public officials was also suspended for the same period .

On DATE a group of Members of ORG filed a petition to ORG in which they alleged that the above amendment was contrary to LAW and that it risked undermining the independence of judges . The representative of ORG submitted written observations on the petition which stated , inter alia , that the suspension complained of was a part of comprehensive restrictive measures affecting the whole national budget which were adopted upon the proposal of the Government with a view to remedying the adverse economic situation . Furthermore , the suspension extended to all public officials whose remuneration was to be adjusted in accordance with the same principle .

ORG dismissed the petition on DATE . The decision stated that the amendment in question did not jeopardise the independence of judges , and that the LAW did not exclude that the remuneration of judges be linked to and reflect the developments in the domestic economy . The provision under which the procedure to adjust the remuneration of judges in accordance with the general economic indicators was suspended did not , therefore , infringe LAW .


Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in DATE and lives in the city of PERSON , GPE .

On DATE ORG awarded the applicant CARDINAL NORP hryvnas ( ORG ) from the ORG - owned ORG company ( Державна будівельно-промислова компанія « PERSON ) in alimonies due to the applicant by her ex - husband who was employed by the company . This judgment remains unenforced .

On DATE the ORG of PERSON rejected the applicant ’s claim against the President of GPE , ORG , ORG and ORG for compensation for pecuniary and non - pecuniary damage inflicted by the non - enforcement of the judgment in her favour .

By an order of ORG dated DATE , the debtor company was liquidated and a liquidation commission established . As a result , ORG terminated the enforcement proceedings in the applicant ’s case and the writ of enforcement was forwarded to the liquidation commission . The liquidation proceedings are still pending .

The relevant domestic law is summarised in the judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL and foll . , § § DATE , ORG CARDINALXII ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is a member of ORG . She was represented before the ORG by Mr J .- L. Chalanset , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their agent , PERSON , Director of ORG at ORG .

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

The “ PERSON ” trial , so named after CARDINAL of the main defendants , PERSON , who was represented by the applicant , took place from DATE . In that case CARDINAL people , mainly of NORP origin , had been arrested in so - called “ NORP ” circles . Eventually , CARDINAL people , including PERSON , were committed for trial in ORG on charges of conspiring to commit acts of terrorism . The trial was held in a gymnasium at FAC , which was transformed into a courtroom for the occasion .

The organisation of the trial triggered strong protests , from the GPE , inter alia , against “ the organisation of a mass trial apparently incompatible with respect for the rights of the defence ” . Many lawyers decided to withdraw from the trial altogether .

On DATE , on her client ’s behalf , the applicant issued a press release , part of which was reproduced by the ORG news agency in a report .

The press release read as follows :

“ For PERSON

Through what is happening in the new law court at FAC , the public are finally beginning to realise the infamy of the procedures used by the special sections of the NORP justice system under the pretext of fighting terrorism .

Purely for the media and for political and demagogic reasons , many people have been branded terrorists whose political opinions differ from those of the powers that be .

But above and beyond what some people are learning in the final , public phase of the court hearings , the public must be told what goes on in secret behind the scenes of the political police and the special judges of the CARDINALth section , whose motto – “ NORP the terrorists ” – was coined by PERSON . At the same time , he declared “ I will cover up any blunders ” .

The hunt was on and the so - called war on terror had a free hand to use terrorist measures against targets designated by those in power , for their own political interests or those of their foreign allies .

Police raids , for example , using methods worthy of the Gestapo and the ORG , at TIME , against whole families , including children , even planting incriminating evidence on them ( like the documents the ORG slipped into ORG ’s briefcase ) .

Not to mention brutality and torture during DATE of police custody , under the supervision of judges from the special section .

Or holding people in complete solitary confinement , for DATE or DATE at a time , without any concrete charges against them other than being “ capable of ... ” , practically without any court hearing , much less any confrontation with their accusers , who in GPE remain anonymous , and the courts consider that normal !

And the trials themselves , a pure formality : the outcome is a foregone conclusion as the so - called terrorists are obviously a threat to public order ; the volume of the case files shows how serious the accusations are , even if they contain nothing but charges fabricated by the investigating judges of the special section , in the form of questions designed to prompt replies that suit their theories .

In the face of such NORP feeling , people with NORP blood naturally take pride of place among the obvious targets , with the aggravating circumstance that they belong to the NORP faith and are therefore presumed guilty of the offence of holding terrorist religious opinions .

PERSON , a mujahid , believes only in the Tawhid , but he is entitled to demand justice , like the other victims of police and judicial terrorism .

Mr PERSON , a founding member and former chief of the CARDINALth special section , considers the groundswell of revolt against the terrorist methods used by his teams as “ an insult to justice in our country ” .

CARDINAL insult , the practices and the manipulation of the media by the special anti - terrorist sections of the police are a crime against public and individual freedoms .

It is high time GPE put a stop to this infamy .

GPE , DATE Isabelle Coutant Peyre

Barrister

for PERSON ”

On DATE the Minister of the ORG , considering some of these remarks defamatory vis - à - vis the national police , lodged a complaint with the GPE public prosecutor for public defamation of a public authority , relying on LAW ( CARDINAL ) of the Freedom of LAW of DATE ( “ the DATE Act ” ) .

The applicant alleged that as she , the accused , was a lawyer , and having regard to the exceptional circumstances of the trial in question , the courts should be broad in their interpretation of the immunity provided for in section CARDINAL of the DATE LAW and allow her the benefit of it . She also argued that because of her profession it was her duty to denounce practices incompatible with the LAW and , that being so , that her press release had been issued in the context of the type of political debate and discussion of ideas accepted in the ORG ’s case - law .

In a judgment of CARDINAL DATE , ORG decided that the offending statements were not covered by the immunity provided for in CARDINAL of the DATE Act and , stressing the defamatory nature of the applicant ’s remarks vis - à - vis the national police , found her guilty of public defamation of a public authority , an offence provided for in and punishable under sections CARDINAL ( CARDINAL ) , CARDINAL , DATE , DATE , DATE and DATE of that Act . The applicant was fined MONEY ( ORG ) ( MONEY ( ORG ) ) and ordered to pay the token sum of MONEY to ORG . The court also ordered the publication , in CARDINAL newspapers of the civil party ’s choice , of a statement announcing the applicant ’s conviction . The court ’s findings read as follows :

“ It is precisely because it is the lawyer ’s duty , in exercising the rights of the defence , to denounce facts or a system in conflict with human rights publicly and forcefully , and because his function makes him particularly credible in the eyes of his fellow citizens , that a lawyer can not afford , without proof or reservations , to voice extremely serious specific accusations against an administrative body – the National Police – essential to the democratic edifice , CARDINAL of whose tasks is to protect people against terrorist activities ;

In the instant case , however , [ the applicant ] did not confine herself to a general criticism of the judicial and police institutions or even the functioning of the fight against terrorism , but in a specific set of proceedings , made extreme accusations against the police of allegedly odious and inhuman practices , without being able to produce a shred of evidence ; that being so , her plea of good faith can not be accepted and the offence with which she stands charged is established ... ”

The applicant appealed . In support of her appeal she relied , inter alia , on the legitimacy of the debate on the means used in the “ fight against terrorism ” , her duty as a lawyer “ to speak out ” and the principle of freedom of expression enshrined in LAW .

In a judgment of DATE , ORG upheld the judgment concerning the applicant ’s guilt but reduced the fine to ORG CARDINAL ( about ORG CARDINAL,CARDINAL ) . The court declared , inter alia :

“ Considering that denouncing the conditions of organisation of the trial of her client , PERSON , and others , and criticising the proceedings as a whole constituted a manifestly legitimate aim for [ the applicant ] , a lawyer ; she could perfectly well have fully attained that aim by developing arguments , even laced with harsh criticisms , without having to draw inconsiderate , insulting parallels ;

Considering that in making extremely serious and ignominious accusations , in a particularly offensive manner , against the police responsible for fighting terrorism , in making the worst kind of comparisons to stir up indignation , in deliberately casting aspersions on a whole body of public servants , [ the applicant ] deliberately expressed herself in partial and vindictive terms , without the slightest caution or moderation ; she can not be accorded the benefit of good faith . ”

The applicant lodged an appeal on points of law . In her pleadings she relied on LAW , alleging , inter alia , that the impugned conviction had violated her freedom of expression .

In a judgment delivered on DATE ORG dismissed the appeal . With regard to the applicant ’s first submission , invoking the immunity provided for in section CARDINAL ( CARDINAL ) of LAW , it held that “ as the impugned press release can not be considered as a written document adduced before a court , ORG applied the PERSON correctly ” . Concerning her second submission , it declared :

“ Given that , in rejecting the defence submission based on the provisions of the LAW and denying the lawyer the benefit of good faith , the judges stated that while denouncing the conditions of organisation of the trial concerning her client and criticising the proceedings as a whole constituted a legitimate aim for [ the applicant ] , she could also have developed arguments , even laced with harsh criticisms , without having to draw inconsiderate , insulting parallels ; that the same judges considered that in making extremely serious and ignominious accusations against the police responsible for fighting terrorism , and making comparisons with the NORP and ORG regime the lawyer deliberately expressed herself “ in partial and vindictive terms ” , without the slightest caution or moderation , casting aspersions on the whole police force ;

Given that in the light of those considerations ORG justified its decision ;

First of all , when a lawyer does not have the benefit of the immunity provided for in section CARDINAL of the Act of DATE , he is not absolved , when expressing himself on his client ’s behalf , of the caution and circumspection necessary to the acceptance of the defence of good faith ;

And secondly , while freedom of expression is protected by LAW , it may , by virtue of the second paragraph of LAW , be subject to restrictions and penalties in the cases determined by LAW of DATE ; that is the purpose of LAW , which provides for a penalty necessary in a NORP society for the prevention of disorder and the protection of the reputation of the public authorities , in this case the national police ; ” .

The relevant provisions of the Freedom of LAW of DATE , as amended , in force at the material time , read as follows :

“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be a punishable offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches , shouts , threats , written or printed matter , placards or posters . ”

“ Defamation of the courts , the army , navy or air force , ORG institutions and public authorities by any of the means listed in section CARDINAL shall be punishable by a term of imprisonment of DATE and a fine of ORG CARDINAL,CARDINAL or one of those penalties only . ”

“ Neither the accurate reporting in good faith of court proceedings nor statements made or documents produced before the courts shall give rise to proceedings for defamation , insult or contempt .

However , the courts examining the merits of the case may order the withdrawal of the insulting , offensive or defamatory statements and order those responsible to pay damages .

Acts of defamation alien to the case may , however , give rise to prosecution or to civil action by the parties when the court has left that course open and , in any event , to civil action by third parties . ”