Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

She stood as a candidate for the elections to the legislative assembly of LOC scheduled for DATE . CARDINAL of her competitors was PERSON , a local businessman .

On DATE CARDINAL minority shareholders and former employees of the local department store “ Oktyabrskiy ” asked the applicant to finance a campaign against PERSON , the majority shareholder of Oktyabrskiy and the chairman of its ORG .

On DATE the applicant arranged for the printing of CARDINAL copies of the following leaflet , drafted by the shareholders :

“ The Truth about K[. ]

We , shareholders of the Oktyabrskiy department store , have suffered from K[. ] We are CARDINAL employees taken hostage by that voracious big wheel . K[. ] :

DATE depreciated our stock ;

– coerced us into selling the stock for a song , threatening us with dismissal ;

– forced CARDINAL employees to resign by not letting them work ;

– paid a miserable salary and often paid us with rotten groceries ;

– having ousted the shareholders by unlawful means , he has become the department store owner .

For DATE we have been fighting for our rights in courts and other instances . The law - enforcement agencies are still powerless . In GPE and its region many people have suffered because of K[. ] ’s unlawful conduct ; but everyone is silent and money does not smell .

We , as victims of K[. ] ’s conduct , propose to write a book entitled ‘ The story of K[. ] ’s dark ORG . Let it include the story of everyone who has met that terrible man on his or her way and become his victim . His fortune was made from our tears . Do not taint yourself by supporting this man . Whatever he undertakes is damned : DATE the renovated city hall is flooded with sewage , and the ORG did not come to bless ORG on the left bank which had been built in breach of NORP canons .

We have suffered much harassment , repression and many a misfortune because of this man . Do not trust his promises , they build on our sorrows and lack of rights .

Voters ! Sign your fair judgment of K[. ] ! Say ‘ no!’ to the fortune made from the woes and tears of simple people .

We are firmly convinced that a man who breaks the PERSON should not be a parliamentarian and lawmaker .

On behalf of the shareholders : PERSON F[. ] , L. K[. ] , ORG A[. ] ” ( emphasis added ) ”

On DATE the applicant was elected a member of the legislative assembly of LOC .

Mr PERSON challenged the election results before ORG . In particular , he claimed that by publishing the leaflet the applicant had resorted to unlawful electoral campaigning . The parties to the proceedings were PERSON and the electoral commission . The applicant was cited CARDINAL party .

On DATE ORG rejected PERSON application . It found that the leaflet had called on electors to vote against Mr K. , which was a permissible form of electoral agitation . The publication of that leaflet had not breached the electoral laws . If PERSON believed that the leaflet contained untrue information damaging to his honour and reputation , it was open to him to bring defamation proceedings .

Mr PERSON sued the applicant and the CARDINAL signatories of the leaflet for defamation . He submitted that the italicised extracts above were untrue and that the leaflet had damaged his reputation and gravely affected the voters’ freedom of choice . He claimed compensation in respect of non - pecuniary damage .

The applicant produced her evidence , including the original leaflet bearing QUANTITY signatures , the decision to issue additional shares taken by ORG of the Oktyabrskiy department store under the chairmanship of PERSON , and an official document showing that the flooding of the ground floor of the city hall had been due to a construction defect which had subsequently been corrected . Several of the minority shareholders had given oral testimony to the court , confirming the information contained in the leaflet .

On DATE the ORG of GPE allowed Mr PERSON ’s claims , finding that the defendants had failed to prove the truthfulness of the contested extracts .

Firstly , the court referred to the judgment of ORG of DATE . It found that it was bound by the finding contained in that judgment that the applicant had failed to prove the truthfulness of the statements in the leaflet .

The court further found as follows .

( a ) The decision approving the issue of CARDINAL additional shares had been adopted by a general meeting of shareholders rather than by PERSON personally . That decision had previously been found lawful by a court . Although PERSON was a majority shareholder , the fact that he had a decisive vote in certain issues “ did not imply the unlawfulness of the decisions taken . For that reason the accusation blaming PERSON for the depreciation of the shares and the ousting of shareholders , as if it were unlawful conduct , was unsubstantiated . The defendants had failed to prove that PERSON had acted unlawfully ” .

( b ) It had not been shown that the depreciation had been the result of Mr K. ’s conduct rather than of another cause . Moreover , the defendants had sold their shares for MONEY each .

( c ) That there had been compulsion to sell shares had not been established . PERSON , being the chairman of ORG , had suggested that shareholders should sell their shares at the price of MONEY each . There was no evidence that he had resorted to extortion , violence or threats of violence .

( d ) The allegation that PERSON had “ forced CARDINAL employees to resign by not letting them work ” was also unsubstantiated . PERSON had not personally signed any dismissals . The employees had resigned of their own free will and the resignations had been countersigned by the director general , PERSON There had therefore been no causal link between PERSON actions and the dismissals of the employees .

( e ) The defendants had failed to prove that PERSON had been personally responsible for the payment of “ a miserable salary ” . The salary of the employees of the Oktyabrskiy department store had been comparable to the average salary in the region . Moreover , “ the notion of a miserable salary [ was ] subjective and the fact that such a salary [ had been ] paid did not imply that it was a consequence of PERSON conduct . The unlawfulness of his conduct had not been proved ” .

( f ) The defendants had not submitted any evidence proving that shareholders had been ousted by unlawful methods or that PERSON had obtained the ownership of the Oktyabrskiy department store unlawfully .

( g ) The allegation that “ whatever [ Mr K. ] undertakes is damned ” was a “ violation ” . The statement that the city hall was flooded DATE was untrue as additional construction works in the city hall had fixed the flooding problem . As to the statement about the church , the Prior of the church had confirmed that it had been built in compliance with NORP canons . Moreover , PERSON had received a “ letter of benediction ” for its construction .

ORG concluded as follows :

“ The leaflet was clearly intended for [ electoral ] campaigning and essentially purported to induce , and has induced , voters to take part in the election and vote against the candidate Mr K[. ] , which is not prohibited under election law .

It has been established that [ the applicant ] was not the source of the information in the leaflet , or its author ; she merely disseminated it . As to the words , expressions and statements about [ Mr K. ’s ] property and fortune and the way it was made , they reflect the opinion and civic position of a micro - community of shareholders and former employees in respect of an existing dispute between them and the joint stock company of which Mr K[. ] is one of the directors . A judicial dispute concerning these matters is pending before ORG ...

As the court considers it proven that the dissemination of statements by the defendants has damaged Mr K[. ] ’s honour , dignity and professional reputation , it awards him MONEY against [ the applicant ] in compensation for non - pecuniary damage ... The court takes into account the nature of the statements disseminated and the fact that the leaflet was signed not only by the defendants , but also by CARDINAL other persons , which substantially reduced the defendants’ liability for the nonpecuniary damage incurred by the plaintiff . ”

In the operative part of the judgment the court cited the italicised statements in the leaflet and pronounced them untrue and defamatory .

The applicant appealed against the judgment . She submitted that ORG had incorrectly considered itself bound by the judgment of DATE , which had concerned a dispute involving a different cause of action and different parties . It had concerned a dispute over the election results between PERSON and the electoral commission ; the applicant had been a third party to that dispute . The issues relating to defamation or compensation for non - pecuniary damage had not been examined in the judgment of DATE . The applicant further maintained that the defendants had submitted evidence proving the truthfulness of the contested allegations . In particular , the witnesses had confirmed that all the statements contained in the leaflet were true . ORG findings had been contradictory . In particular , although ORG had found that PERSON PERSON , being the majority shareholder of the Okrtyabrskiy department store , had influenced its policy , it had also found , conflictingly , that PERSON had not been personally responsible for the impugned omissions . In conclusion , the applicant submitted that the judgment of DATE had violated her right to impart opinions .

On DATE ORG upheld the judgment of DATE on appeal . It held as follows :

“ The conclusions of the [ ORG are correct , as it can be seen from the contents of the entire contested text that the authors presented Mr K[. ] , a candidate for election to the legislative assembly of ORG and head of [ the Oktyabrskiy department store ] as disreputable , as someone who infringes the PERSON and moral principles , who builds his fortune unlawfully and who harasses the shareholders of the Oktyabrskiy department store in various ways ...

The [ ORG allowed the claims as the defendants had not submitted evidence showing that the allegations contained in the leaflet were true . Moreover , the assessment of Mr K[. ] ’s personality was formulated in clearly insulting terms . ...

... the [ ORG correctly considered the finding made in the judgment of ORG of DATE that [ the defendants ] had failed to prove the truthfulness of the statements contained in the leaflet ... as evidence established by the courts ...

[ The applicant ’s ] arguments that the present case has a different cause of action and that the parties have different procedural status can not warrant the re - establishment of a fact that has earlier been established by a court . As ORG made an assessment of the truthfulness of the allegations contained in the leaflet , the courts are bound by that judgment ... in the determination of the present case .

[ The applicant ’s ] argument that ... the judgment violates ORG constitutional right to freedom of thought , speech and information is unfounded . The views of a citizen or a group of citizens on a certain issue , if they are distributed in written form , must be formulated in proper language .

The expressions used in the leaflet , such as ‘ voracious big ORG , ‘ that terrible man’ , ‘ his fortune was made from our ORG , ‘ whatever he undertakes is ORG , ‘ the story of K[. ] ’s dark ORG are clearly insulting , are formulated in cynical terms , give an assessment of the plaintiff ’s personality and contradict the socially acceptable norms of conduct and religious principles ...

The appeal must be dismissed because the [ ORG ] correctly assessed the evidence , rightly concluded that the statements in the leaflet were untrue and gave judgment in accordance with the substantive and procedural rules .

However , the operative part of the judgment must be clarified . Since essentially the entire leaflet contains untrue statements damaging to Mr K[. ] ’s honour , dignity and professional reputation , the list of statements that were found to have been untrue must be deleted from the operative part .

d untrue statements damaging to Mr K[. ] ’s honour , dignity and professional reputation set out in a deliberately insulting form , the degree of anguish experienced by the victim , the [ ORG ] considers it appropriate to increase , in accordance with LAW , the award in respect of non - pecuniary damage to MONEY against [ the applicant ] and to MONEY against [ the other defendants ] . ”

The Federal Law of DATE on Basic Guarantees of Citizens’ Electoral Rights and the Right to Participate in Referenda ( no . CARDINAL , in force at the material time , hereafter “ LAW ” ) provides that election candidates may distribute agitation materials ( section CARDINAL § CARDINAL ) .

It is prohibited to abuse the freedom of the mass media , in particular , by encouraging social , racial , ethnic or religious hatred or enmity , by calling for the usurpation of power or forcible change of the constitutional foundations of GPE or breach of the territorial integrity of GPE , by advocating war or by abusing the freedom of the mass media in any other way ( section CARDINAL § CARDINAL ) .

Article CARDINAL of the Civil Code provides that an individual may apply to a court with a request for the rectification of “ statements ” ( “ сведения ” ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .

Resolution No . CARDINAL of ORG of GPE of DATE ( amended on DATE and in force at the material time ) provided that in order to be considered damaging statements had to be untrue and contain allegations of a breach of laws or moral principles ( commission of a dishonest act , improper behaviour in the workplace or in everyday life , etc . ) . “ Dissemination of statements ” was understood as meaning the publication of statements or their broadcasting ( section CARDINAL ) . The burden of proof was on the defendant to show that the disseminated statements were true and accurate ( section CARDINAL ) .

Article CARDINAL § CARDINAL of the Civil Code provides that a court may award compensation for non - pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal nonpecuniary rights . Article CARDINAL lists , among other personal non - pecuniary rights , the dignity of a person and his / her honour , good name and professional reputation .

The amount of compensation for non - pecuniary damage depends on the degree of fault of the offender and other pertinent circumstances . The court must also take into account the degree of physical or mental suffering experienced by the victim ( LAW ) . T ( LAW ) .

The circumstances established by a final judgment are binding on the courts . There is no need to establish those circumstances anew and they may not be contested in any future litigation by the same parties ( LAW ) .

The court must decide on the claims made by the plaintiff . It may only decide on claims it has raised of its own motion where a federal law so provides ( LAW ) .


The applicant , ORG , is a NORP citzen , who was born in DATE and lives in GPE . She is represented before the ORG by PERSON PERSON and PERSON , lawyers practising in PERSON . The respondent Government are represented by their Agents , PERSON PERSON and Ms Š. PERSON .

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

In DATE several plots of agricultural land were confiscated from the applicant 's father .

On DATE ORG passed a law , which enabled former owners of confiscated or nationalised property to seek either restitution of or compensation for the property taken from them ( “ the LAW ” ) . It also provided that within DATE from its enactment the competent ministers were to issue relevant instructions on the implementation of that Act .

LAW entered into force on DATE .

On DATE the applicant filed a request with the GPE , ORG , ORG ( “ the NORP ” ) , seeking restitution of , or compensation for , property taken from her late father .

On DATE the ORG accepted the applicant 's request in part granting her state bonds as compensation for the property taken . The exact amount of the indemnities offered to the applicant was to be established after the enactment of the competent instructions . However , no such instructions had been adopted by the competent minister at that time .

On DATE the applicant appealed against that decision . On DATE ORG ( ORG pravosuđa ) dismissed the applicant 's appeal in part . The first instance decision thereby became final .

The applicant subsequently filed an administrative action against the ORG 's decision . On DATE ORG ( Upravni sud PERSON ) accepted the applicant 's action and quashed that decision . It appears that the case is still pending before ORG as the second instance authority .

Meanwhile , on DATE ORG ( ORG financija ) adopted the Rules on the Criteria for the Determination of the Compensation for Confiscated Building Land and Business Premises ( PERSON o mjerilima za utvrđivanje naknade za oduzeto građevinsko zemljište i poslovni prostor , ORG no . CARDINAL/CARDINAL , CARDINAL ; “ the Rules ” ) . The Rules have been applicable since DATE .

Section CARDINAL of the Act on Compensation for , and Restitution of , Property Taken under ORG ( Zakon o naknadi za imovinu oduzetu za ORG jugoslavenske komunističke vladavine , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL ) provides that the Act applies to former owners and their statutory heirs who are relatives of the first degree .

Sections CARDINAL and CARDINAL , inter alia , oblige the Minister of Finances to issue further instructions for the assessment of value of the property for which compensation is to be granted within DATE from the enactment of LAW .

Section CARDINAL § CARDINAL of the Administrative Procedure Act ( Zakon o općem upravnom postupku , ORG no . CARDINAL/CARDINAL ) provides that an administrative decision is executed once it becomes enforceable . LAW of the same provision provides the cases in which a first instance decision exceptionally may become enforceable , whereas paragraph CARDINAL provides that a second instance decision become enforceable on DATE of the service on the party .


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

On DATE police officers from ORG arrested the applicant on suspicion of membership of an illegal organisation , ORG ) .

On DATE the applicant was detained on remand .

On DATE ORG filed a bill of indictment with ORG against the applicant and CARDINAL other defendants . ORG accused the applicant , inter alia , of membership of an illegal armed organisation , namely the THKP / C , whose object was to undermine the constitutional order and replace it with a NORP - Leninist regime . He further charged the applicant with having been involved in a number of crimes such as killing of foreign military officers , bombing and opening fire on security forces , organising and participating in illegal meetings .

The prosecution sought the death penalty under LAW .

In a judgment of CARDINAL DATE the İstanbul Martial Law Court convicted the applicant of membership of the THKP / C and his involvement in some of the alleged crimes . It sentenced the applicant to lifetime imprisonment under LAW .

As the applicant ’s sentence exceeded CARDINAL years’ imprisonment , his case was automatically referred to ORG ( PERSON ) .

On DATE ORG quashed the applicant ’s conviction on the grounds that the first instance court failed to establish the applicant ’s involvement in certain of the alleged crimes . It referred the case to the Istanbul Martial Law Court .

On DATE the Istanbul Martial Law Court convicted the applicant under LAW and sentenced him to lifetime imprisonment , permanently debarred him from employment in the civil service and placed him under judicial guardianship . The court ordered the applicant ’s release pending trial on DATE . The applicant appealed .

Following promulgation of the Law of DATE , which abolished the jurisdiction of ORG , ORG ( Yargıtay ) acquired jurisdiction over the case and on DATE the case file was transmitted to it .

On DATE ORG upheld the applicant ’s conviction .

Article CARDINAL § CARDINAL of the Criminal Code provides :

“ Whosoever shall attempt to alter or amend in whole or in part LAW or to effect a coup ORG formed under LAW or to prevent it by force from carrying out its functions shall be liable to the death penalty . ”


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr Z. Cichoń , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .

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

In DATE the applicant got married and on DATE the applicant ’s wife gave birth to a girl , J.

The applicant did not try to rebut the legal presumption that he was J ’s father . Subsequently , a second daughter was born of the applicant ’s marriage .

In DATE the applicant divorced from his wife . The court awarded custody of the children to the applicant ’s former wife and ordered the applicant to pay child maintenance for them . No doubts as to the applicant ’s paternity were raised in the divorce proceedings .

The applicant submitted that he had had doubts as to his paternity of his older daughter since the beginning of his marriage which had been reinforced during the divorce proceedings when his wife had admitted to infidelity . However , the applicant had neither brought an action denying paternity after the birth of J nor raised doubts as to his paternity in the divorce proceedings , considering that at the material time there had been no reliable scientific method of ascertaining that he was not the biological father of J. When DNA evidence had become possible in GPE and the applicant had decided to bring an action denying paternity , J had refused to undergo the test .

On DATE the applicant requested ORG ( Prokurator Rejonowy ) to initiate civil proceedings by which he could deny his paternity of J. The applicant based his application on his personal conviction that J was not his daughter and on his suspicion that a certain PERSON could be her biological father .

On DATE the applicant supplemented his application by submitting documents that had been requested by the prosecutor .

Subsequently , the prosecutor obtained the case file of the applicant ’s divorce proceedings from DATE and heard testimonies from the applicant ’s former wife . She denied having had an affair with PERSON , who had been her employer at the material time , and confirmed that the applicant was the father of her children . She also refused to submit to DNA testing .

On CARDINAL occasions in DATE the prosecutor attempted to hear evidence from the applicant , but he failed to reply to the summons .

On DATE the prosecutor sent him a letter refusing to initiate such proceedings . The prosecutor based that decision on the statements by the applicant ’s former wife that the applicant was the biological father of J. As the applicant himself had failed to appear for interview with the prosecutor and his former wife had refused to undergo a DNA test , the prosecutor concluded that there was no evidence supporting the applicant ’s request .

The applicant contested this decision . On DATE ORG ( Prokurator Okręgowy ) informed him that he fully agreed with the findings of ORG . On DATE the applicant appeared before the prosecutor without being summoned .

On DATE ORG questioned the applicant and again dismissed his request to bring civil proceedings denying his paternity . The prosecutor considered that it was not possible to grant the applicant ’s request solely on the basis of his statement . The prosecutor pointed to the fact that the applicant had not denied his paternity in the divorce proceedings DATE and that his former wife had confirmed that he was the biological father of J. In those circumstances only genetic evidence could cast doubt on the presumption that the applicant was the father of J. Such a medical test could be ordered by the prosecutor ; however , in the instant case it had not been possible given the lack of consent of all the parties involved , including his former wife .

The applicant again contested the above decision .

On DATE ORG dismissed his complaint as groundless .

Under LAW ( ORG i ORG – “ the Code ” ) , if a child was born in wedlock there is a legal presumption that the mother ’s husband is the father of her child . That presumption can be rebutted by bringing a civil action denying paternity ( zaprzeczenie ojcostwa ) ( LAW ) .

Under LAW , an action denying paternity can be brought by the husband of the mother within DATE of learning that his wife has given birth to a child .

Finally , Article CARDINAL of the Code provides that paternity may at any time be challenged by a prosecutor .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Just satisfaction reserved

Mr PERSON , who is a NORP national and resides at FAC , is a bus driver .

ORG On DATE CARDINAL of his brothers - in - law , Mr PERSON , shot him in the head following a family quarrel . The applicant was rushed to the São João de Porto hospital where he remained until DATE .

ORG On DATE the police arrested the suspect and communicated the facts to ORG , who requested the investigating judge of ORG to question him .

ORG Since there was insufficient evidence to establish the offence of attempted murder , the investigating judge ordered , on DATE , the provisional release of PERSON , subject to the lodging of a security of QUANTITY . He also decided to transmit the file to ORG for the inquiry to be continued .

ORG On DATE a court medical officer examined the applicant and asked that the medical report drawn up by the São João de Porto hospital be communicated to him .

ORG This report was supplied to him on DATE and ORG fixed the date of the medical examination for DATE . On that occasion the court medical officer noted that the injuries resulting from the attack had led to PERSON being unfit for work for DATE . On DATE he expressed the opinion that the applicant required another CARDINAL days’ sick leave . On CARDINAL May he pronounced the applicant to be recovered , but prescribed other specialist examinations .

ORG On DATE the applicant stated that he wished to intervene as an assistant ( assistente ) of the prosecuting authority in the preliminary investigation . The investigating judge allowed his application on DATE .

ORG On DATE and DATE the applicant was examined by an ear , nose and throat specialist and an opthalmologist .

ORG On the recommendation of the opthalmologist he underwent a neurological examination on DATE . This was followed on DATE by an electroencephalogram and on DATE by a further medical examination ordered by ORG .

ORG On DATE ORG decided , at the request of the court medical officer , to arrange for a further neurological examination .

ORG As ORG informed him that the applicant could not be examined until DATE , ORG entrusted this task to the court medical officer , who was invited to express an opinion in particular as to whether the assailant had acted with " the intention of causing death " .

ORG In a report dated CARDINAL DATE , the medical officer concluded that the applicant had recovered and that the period during which he had been unfit for work was the period already established . He also expressed the opinion that the assailant had indeed intended to kill .

ORG In the light of this report , ORG communicated the file to the investigating judge on CARDINAL DATE , requesting him to open the preliminary investigation .

ORG On CARDINAL DATE the investigating judge asked ORG ( PERSON ) to examine the various medical reports ( LAW ) , but to no avail .

The file was transferred to ORG ( tribunal de instrução criminal ) of ORG where it was registered on DATE .

ORG On DATE the applicant wrote to the investigating judge of PERSON seeking a further examination by the court medical officer and criticising the length of the proceedings .

ORG On DATE the judge of ORG of ORG sought the opinion of ORG as to whether an amnesty law was applicable .

ORG In a letter of CARDINAL DATE , the applicant complained that his letter of CARDINAL DATE ( see paragraph CARDINAL above ) had not been added to the file ; he repeated his request .

ORG On DATE the judge of ORG of ORG , in his turn , instructed ORG to examine the medical reports and , on DATE , asked the court medical officer to clarify some points in his report of CARDINAL DATE .

ORG On DATE the court medical officer recommended a further neurological examination , which the judge ordered on DATE .

ORG In the meantime , by a letter of CARDINAL DATE received at ORG on DATE , ORG had asked the court medical officer to specify the number of days during which the applicant had been unfit for work and also to indicate the after - effects of the attack . On DATE the medical officer described the injuries and stated that the applicant had been unfit for work for DATE and still suffered from disability . He had lost a part of his skull and was deaf in the left ear .

ORG On DATE Mr PERSON was examined by a neurologist who sent his report to the judge on DATE .

ORG On DATE the judge requested the court medical officer to submit his report . He did so on DATE and on DATE the document was sent to ORG .

ORG On DATE that body approved the findings of the court medical officer ’s report , adding that the attack had resulted in a disability and a total incapacity .

ORG On DATE the judge ordered that the applicant and the accused be questioned on CARDINAL DATE . The applicant was questioned on DATE but the accused was unwell and did not appear .

ORG On DATE the applicant asked for CARDINAL witnesses to be heard .

ORG On DATE May the judge decided that the accused should be questioned on DATE . However , as the latter had absented himself for an indefinite period , the bailiff was unable to serve this order on him .

ORG On DATE Mr PERSON submitted a report by ORG dated DATE and drawn up following a medical examination . According to this document he suffered from a PERCENT incapacity .

ORG On DATE the judge issued a warrant for the accused ’s arrest and , on DATE , questioned the witnesses named by the applicant .

ORG On DATE the police officer assigned to the case informed the judge that Mr PERSON had disappeared .

ORG On DATE the judge closed the preliminary investigation and forwarded the file to ORG . On DATE the latter requested the opening of adversarial investigation proceedings and drew up the prosecution submissions ( acusação ) . He sought the accused ’s arrest , contending that provisional release was not available to persons charged with attempted murder .

ORG On DATE the judge declared the adversarial investigation proceedings open and ordered the accused ’s arrest , but the latter could still not be traced .

ORG On DATE the judge closed the investigation and forwarded the file to ORG , who drew up the prosecution submissions on DATE .

ORG The accused was committed for trial on DATE and on DATE was arrested and remanded in custody .

ORG On DATE the court scheduled the hearing for CARDINAL DATE .

ORG On DATE the applicant asked for evidence to be taken from CARDINAL witnesses .

ORG On DATE , at the beginning of the hearing , the applicant ’s lawyer submitted an oral request to ORG that the fixing of the amount of any compensation be deferred until the subsequent enforcement proceedings ( " liquidação em execução de sentença " ) , in accordance with LAW para . CARDINAL of LAW .

ORG On DATE the court acquitted the accused on the charge of attempted murder . However , it sentenced him to CARDINAL months’ imprisonment for causing grievous bodily harm and ordered him to pay damages to the applicant in an amount to be fixed in the enforcement proceedings .

ORG The applicant and the accused filed appeals .

ORG On DATE ORG ( tribunal de relação ) allowed PERSON appeal . At the same time it declared the criminal prosecution out of time ( DATE limitation period ) .

Mr PERSON then appealed to ORG ( Supremo Tribunal de Justiça ) which , on DATE , upheld the appeal court ’s judgment . The letter of notification was sent to the applicant on DATE . He was deemed to have received it on DATE after its despatch ( LAW . CARDINAL of Legislative Decree No . CARDINAL ) .

ORG In GPE criminal proceedings are in principle brought by ORG . According to LAW . DATE of DATE " criminal proceedings are the responsibility of the authorities ; they shall be brought by ORG subject to the restrictions provided for in the following Articles " . These restrictions relate to the cases in which the police or administrative authorities or other ORG organs may bring criminal proceedings , but they apply in general only for petty offences . Legislative Decree No . CARDINAL of DATE also states , in LAW thereof , that " except as provided for by law , criminal proceedings shall be conducted by ORG who shall open the preliminary inquiry or communicate the file to the investigating judge , as the case may be " .

ORG In certain cases , private persons may participate in the criminal proceedings as assistentes . LAW Legislative Decree No . DATE provides as follows :

" The following may participate in proceedings as assistentes :

CARDINAL Those persons without whose accusation or complaint ORG can not bring a prosecution ;

CARDINAL The victims , namely those whose interests the criminal law sought especially to protect by prohibiting the offence ;

CARDINAL The husband in trials concerning offences of which his wife has been the victim , unless she objects thereto ;

CARDINAL The spouse , where there is no judicial separation or separation of property , or the surviving spouse or any ascendant , descendant , brother or sister , in cases where the victim is deceased or incapable of managing his or her own affairs ;

CARDINAL Any person in trials concerning embezzlement , bribery , misappropriation of public funds or corruption .

Para . CARDINAL - The assistentes perform the function of assistants to ORG ; their role in the proceedings is subordinate to that of ORG , except in cases provided for by the law .

Para . CARDINAL - However , the assistentes are entitled in particular :

CARDINAL to make prosecution submissions independently of those filed by ORG ;

CARDINAL to intervene directly in the adversarial investigation proceedings by adducing evidence and requesting the judge to take the appropriate measures ;

CARDINAL to appeal against the order committing the accused for trial , the judgment or the order terminating the proceedings , even if ORG has not done so .

Para . CARDINAL - ... ( repealed )

ORG . CARDINAL - In cases where the assistentes make prosecution submissions relating to facts different from those which are the subject of the prosecution submissions filed by ORG , they may not appeal against the decision of the court if it accepts LAW submissions .

ORG . CARDINAL - The assistentes may intervene at any moment in the proceedings DATE before the trial hearing and shall accept the state of the proceedings as they stand at that stage . "

The preamble to the LAW states as follows :

" CARDINAL . Criminal proceedings shall be brought by ORG in his capacity as a ORG authority . The right to punish an offender is a right that belongs exclusively to the ORG and consequently private individuals may , in accordance with the law , assist in bringing a prosecution , but have no personal right to bring one ... . "

Article CARDINAL of the Code of Criminal Procedure provides that the preliminary investigation is to be secret . However , according to paragraph CARDINAL thereof the accused and the assistente may have access to certain documents in the file provided that this does not impede the discovery of the truth .

ORG LAW applicable at the material time - new provisions came into force with effect from DATE - contained several provisions on the victim ’s right to compensation :

" A claim for damages resulting from a punishable offence for which the perpetrators are liable must be brought in the criminal proceedings in process and may be brought in separate proceedings in the civil courts only in the cases provided for by this Code " .

" Except in the cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party , civil proceedings may be instituted separately in the civil courts where the prosecution has not been brought by ORG within DATE of the complaint being laid or where no action has been taken on the complaint for the same period , where the proceedings have been discontinued or where the accused has been acquitted .

Para . CARDINAL In cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party , the victim may bring civil proceedings , but if he does so , the criminal proceedings shall lapse .

Para . CARDINAL Where criminal proceedings have been instituted , civil proceedings may be brought separately only where no action has been taken in the criminal proceedings for DATE or more through no fault of the assistente where the proceedings have been discontinued or where the accused has been acquitted . "

" The claim for damages may be lodged in criminal proceedings even by a person who has not intervened as an assistente .

Para . CARDINAL The Public Prosecutor shall seek damages on behalf of the ORG , where appropriate , and on behalf of bodies serving public interests or the legally incapacitated to whom compensation is payable , if they are not represented by a lawyer in the proceedings .

Para . CARDINAL The statement of claim for damages shall be set out in articles .

Para . CARDINAL The evidence relating to the award of damages shall be adduced within the time - limits applying for the criminal proceedings ... "

" If the accused is convicted , the court shall decide the amount to be paid to the victims in respect of damages , even where no claim has been lodged .

Para . CARDINAL In cases where the law accords civil compensation to other persons the amount shall be determined for each party .

Para . CARDINAL The amount of compensation shall be determined at the discretion of the court which shall take into account the seriousness of the offence , the pecuniary and non - pecuniary damage and the financial and social position of the injured party and of the offender .

Para . CARDINAL The persons entitled to compensation may request , before judgment is pronounced at first instance , that the amounts of compensation be decided in enforcement proceedings . In such circumstances assessment and enforcement shall take place in the civil courts , the criminal judgment serving as the basis for enforcement .

ORG . CARDINAL If , in the cases provided for by law , the civil action for damages is pending or has been judged in the civil courts , compensation shall not be determined in the criminal proceedings . "

LAW Legislative Decree No . CARDINAL/CARDINAL , cited above , states moreover as follows :

" In cases where the accused is acquitted , the court shall order the accused to pay damages in respect of proven unlawful acts or liability based on risk , if established .

In such cases LAW Procedure shall apply , adapted as necessary . "

ORG In a " ruling " judgment ( assento ) of CARDINAL DATE ORG held that the civil courts had no competence to award compensation if compensation had already been awarded in the criminal proceedings ( PERSON , Series CARDINAL , CARDINAL DATE ) .

Although this decision concerned civil and criminal damages for road traffic infringements , it set out the following general considerations :

" LAW [ of LAW ] establishes the principle of the interrelation ... between the criminal and the civil proceedings but with greater emphasis on the priority of the criminal proceedings over the civil proceedings ...

... The formulation of prosecution submissions in the criminal proceedings , which are intended to secure the conviction of the accused , can therefore be seen as implying a request for compensation to be awarded to the victim , because according to the law such compensation is a consequence of a conviction .

... the amount of compensation is determined by the criminal judgment regardless of whether the victim has filed a civil claim ... . "


The applicant , PERSON , has the citizenship of GPE and GPE . She was born in DATE and lives in GPE , GPE . Her previous application ( no . CARDINAL ) was declared inadmissible by a ORG on DATE .

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

In DATE the applicant decided to repatriate to GPE from her emigration in GPE . Upon her arrival in GPE , her personal belongings were taken into customs storage pending the termination of the repatriation proceedings . On DATE ORG rejected the applicant ’s request for recovery of her belongings before the end of those proceedings . Her administrative appeal was to no avail .

On DATE the applicant ’s repatriation was acknowledged by ORG .

On DATE ORG dismissed the applicant ’s administrative complaint about the denial of recovery of her belongings .

Upon the applicant ’s repeated complaints , on CARDINAL DATE ORG established that no advance in the applicant ’s customs affair had taken place since DATE , given that the applicant had failed to proceed to obtain an identity card . On DATE the Deputy Head of ORG informed her that as long as she did not deposit her NORP passport , no identity card and , consequently , no certificate for customs clearance could be issued .

On DATE the applicant brought a compensation action before the GPE XX / XXI District Court . The action was subsequently forwarded to ORG to which the applicant submitted on CARDINAL DATE that she sought compensation from ORG on account of the customs authorities’ reluctance to proceed with the customs clearance of her belongings and on account of the damages which had resulted from their long storage .

On DATE ORG dismissed the action . The applicant appealed .

On DATE ORG , acting as second instance , held a hearing and upheld the first - instance judgment .

On DATE the applicant filed with ORG a petition for review by ORG . She also requested that a legal - aid lawyer be appointed for her . Subsequently she left GPE and returned to GPE .

ORG appointed a legal - aid lawyer . On DATE ORG notified this decision to the applicant using her last known address in GPE . DATE this notification was returned by the post on account of the fact that the applicant had moved out without having left her new address behind .

On DATE the applicant ’s legal - aid lawyer filed a completed petition for review .

On DATE the review bench of ORG upheld the second - instance decision . This decision was served , in accordance with LAW of LAW , on the applicant ’s lawyer on DATE . On DATE the lawyer forwarded the decision to the applicant ’s last known address in GPE .

The applicant submits that she obtained a copy of the decision only on DATE when she received , under her NORP address , her legal - aid lawyer ’s repeated communication in the matter .


Violation of Art. 10;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Mr Ionel Dalban was a journalist who ran a local DATE magazine called Cronica Romaşcană . He lived in the town of NORP until his death on CARDINAL DATE .

On DATE an article by the applicant , headlined “ NORP IAS defrauded of CARDINAL ” , appeared in issue no . DATE of his magazine . The article exposed a series of frauds allegedly committed by PERSON , the chief executive of a ORG - owned agricultural company , FASTROM of Roman ( previously known as the ORG IAS or ORG farm ) . ORG reports as the source of his information , the applicant wrote , in particular :

“ ... a new fraud of incredible proportions has been discovered within the NORP company ORG ( the former ORG farm ) , the prime suspect being a privileged member of the local communist nomenklatura , Mr PERSON The losses caused by him ... amount , according to ORG and other expert estimates , to over CARDINAL lei ! The fraud was committed by entering stock in the inventory of [ FASTROM of Roman ’s ] central warehouse – stock that does not appear anywhere in the inventories of the undertakings under its control . It has been established that much of this stock was replaced by goods required by PERSON and his friends and family , or exchanged for cash , which was then shared out in fraternal fashion . It makes CARDINAL think of the highwaymen of old , who flouted the law both of God and of the land ( GPE ca - n codru ) ! ...

The people of NORP are asking how this could have happened . Perhaps Senator PERSON , who , hitherto , has been the ORG representative on the board of FASTROM of Roman , will give us an explanation . He was paid CARDINAL of lei DATE in that capacity . Now we know why DATE or , to put it another way , how DATE he has been protecting the ORG ’s interests ... ”

In an article in issue no . CARDINAL of the magazine , published on DATE , the applicant wrote :

“ A PERSON estate car [ belonging to the FASTROM company ] was ‘ made ORG to Senator PERSON DATE for DATE to take him to and from FAC ( driven by PERSON ) . This practice may have stopped but it has not been forgotten . ”

PERSON and PERSON laid an information against the applicant under LAW of LAW on the basis that what he had written was defamatory .

On DATE ORG of First Instance ( judecătoria ) convicted the applicant of criminal libel , giving him a suspended sentence of CARDINAL months’ imprisonment and ordering him to pay CARDINAL lei ( ROL ) to PERSON and PERSON , who were claiming damages in the same proceedings . Further , the applicant was banned from practising his profession for an indefinite period .

The court found that , although CARDINAL criminal investigations had been held into PERSON ’s conduct , the public prosecutor ’s office had decided on DATE and DATE that he had no case to answer in relation to charges of misappropriation of corporate assets or causing harm to the public interest in the course of his duties as a civil servant ( abuzul în serviciu contra intereselor obşteşti ) , an offence under LAW .

With regard to PERSON , the court found that DATE and DATE the salary he had received in his capacity as a member of the board of ORG representatives had been ROL CARDINAL,CARDINAL – not “ CARDINAL ” of lei . It also found that , under the ORG ’s Standing Orders , “ prefects [ were to ] place a means of transport and a secretary at the disposal of senators in order to facilitate the performance of their duties ” and that , in a letter ( ref . no . CARDINAL/CARDINAL ) , the prefect ’s office in the county of ORG had requested FASTROM of NORP to make a car available to the office of the senator for PERSON . The court concluded that the applicant ’s allegations did not correspond to reality .

The applicant appealed against this judgment . According to him , the ORG reports on the basis of which PERSON had been charged , reports by ORG inspectors of CARDINAL and DATE and DATE and statements by members of the board of directors of , and of the trade union operating within , FASTROM of NORP all contained evidence of illegal accounting operations attributed to the chief executive , PERSON According to those documents , the sums involved amounted to more than ROL CARDINAL .

As regards PERSON , the applicant pointed to the fact that ORG had acknowledged in its judgment of DATE that PERSON had used a car belonging to FASTROM of Roman . He argued that his assertions concerning the salary received by PERSON had not been defamatory , despite the admitted error as to its amount .

In a judgment of DATE ORG ( tribunalul judeţean ) decided by CARDINAL votes to CARDINAL to uphold the judgment of DATE as regards both the sentence of imprisonment and the compensation order . Noting that the public prosecutor ’s office had decided on CARDINAL occasions not to press charges against PERSON , the court found – without examining the police reports produced by the applicant in support of his allegations – that those allegations did not correspond to reality . With regard to Senator PERSON , the court found that his use of the car had been lawful .

However , the court did set aside the ban on the applicant working as a journalist , “ because of the praiseworthy way in which he had conducted himself during the proceedings ” .

The dissenting judge , PERSON , delivered a minority judgment in which he concluded :

“ ... Revealing the truth is a sine qua non if shortcomings are to be eliminated and the interests of society defended . Those interests take priority over the defence – at any price DATE of our reputations . As the active conscience of the nation , a journalist has both the right and the duty to question institutions and those who run them , so as to monitor whether they are working satisfactorily , whether they deserve the authority with which they have been vested and whether the prestige which surrounds them is deserved or not . No one is infallible and no one can claim to be .

It appears to me unjust to convict the journalist PERSON when all he has done is to fulfil his duty as a journalist in an objective manner , with the aim of contributing to creating a healthier moral climate in the town in which he lives and works ... ”

Despite his conviction , the applicant continued to publish information concerning the fraud allegedly committed by PERSON

Moreover , he did not pay the damages awarded to PERSON and PERSON

As a result of his revelations , the NORP parliament ’s ORG requested the ORG public prosecutor ’s office to look into the matter .

A non - governmental organisation , the “ ORG for ORG ” , also took up the revelations , with the result that on DATE the NORP public prosecutor ’s office opened a new judicial investigation into PERSON ’s conduct .

Following the applicant ’s conviction , other newspapers , including the mass - circulation national DATE PERSON , published articles about the alleged fraud .

Many newspapers described the applicant ’s conviction as an “ attempt to intimidate ” the press .

On DATE the Procurator - General applied to ORG to have the applicant ’s conviction at first instance and on appeal quashed on the grounds that the offence of criminal libel had not been made out .

In a judgment of CARDINAL March CARDINAL ORG allowed the application . With regard to the applicant ’s conviction for libelling PERSON , it acquitted the applicant on the ground that he had acted in good faith . In respect of the libel on PERSON , the court quashed the conviction and , while holding that the applicant had been rightly convicted , decided to discontinue the proceedings in view of his death .

The relevant provisions of LAW are as follows .

“ Anyone who makes any statement or allegation in public concerning a particular person which , if true , would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public opprobrium , shall be liable to imprisonment for DATE or to a fine . ”

“ Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest . Where the truth of the statement or allegation is proved , no offence of insult or defamation will have been committed . ”

The relevant provisions of LAW read :

“ An appeal shall lie in the following circumstances :

( CARDINAL ) where the judgment does not deal either with all the charges made against the accused in the committal order , with all the evidence taken or with all applications that are of essential importance to a party in that they may safeguard that party ’s rights or have an effect on the outcome of the trial ;

LAW

“ Anyone who has been finally convicted is entitled to compensation from the ORG for any loss or damage suffered where it is held in a fresh judgment against which no appeal lies that he did not commit the offence in question or that the offence was not committed .

A person who , at any time during the investigative or trial stage of the case , acting with clear intent and in a gravely culpable manner , hindered or sought to hinder the establishment of the truth shall not be entitled to any such compensation .

Any person designated in sub - paragraphs CARDINAL or CARDINAL above who was in employment at the time of his arrest shall be treated , for the purposes of all allowances and benefits linked to length or continuity of service , as if he had been continuously employed during the period of his imprisonment or penal labour . ”

Article CARDINAL

“ Proceedings under LAW for compensation for loss or damage may be brought by any person who has suffered such loss or damage or , after his death , may be brought or pursued by his dependants .

Such proceedings must be commenced within DATE of the date of the final acquittal or order discontinuing the proceedings . ”


The applicant is a NORP citizen , born in DATE . He is an inventor , resident in ORG . In the proceedings before the Convention institutions he has been represented by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , Attorney , Office of the Attorney General ( ORG ) .

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

While seeking to earn his living from his own inventions , the applicant encountered financial problems . He ceased to pay taxes in DATE and by DATE his tax debt amounted to approximately ORG CARDINAL,CARDINAL .

In view of the applicant ’s financial problems , the local social security authorities issued a guarantee for a ORG CARDINAL loan contracted by the applicant . Later , as the applicant defaulted on the loan , the municipality paid the bank in full and took over the loan and mortgage .

As of DATE , the applicant ’s real property in ORG was mortgaged for ORG CARDINAL . According to a valuation of CARDINAL DATE acquired by the applicant , the property ’s sales value was estimated at ORG CARDINAL,CARDINAL and its technical value at ORG MONEY .

On DATE the tax authorities lodged a petition with ORG ( skifterett ) for the opening of bankruptcy proceedings against the applicant . Under NORP law such a decision would be followed by the appointment of administrators entrusted mainly with the tasks of taking over the control of the debtor ’s property , verifying the claims made in the estate and ensuring its fair distribution among the creditors , in accordance with specific rules . The administrators’ actions may be challenged separately by the debtor in ordinary judicial proceedings , if need be , at CARDINAL instances , the first CARDINAL with oral hearing .

At an oral hearing on DATE , the applicant , unassisted by counsel , declared that his debts amounted to ORG CARDINAL and that his real assets amounted to ORG CARDINAL . By a decision ( kjennelse ) of the same date , ORG dismissed the request for the opening of bankruptcy proceedings concerning the applicant ’s estate , finding that , “ because of uncertainty ( usikkerhet ) attached to the value of the applicant ’s real estate , the issue of insolvency was uncertain ( usikkert ) . ”

The authorities appealed against ORG decision to ORG ( lagmannsrett ) , arguing that the sales value of the applicant ’s real estate amounted to ORG CARDINAL,CARDINAL,CARDINAL according to an evaluation of CARDINAL DATE carried out by a bank . Consequently , the applicant 's debts exceeded his possessions by more than ORG CARDINAL .

In his rejoinder to ORG dated DATE the applicant , still unrepresented , requested that the appeal be dismissed “ already at this preparatory stage of the proceedings ” . He argued that at a meeting on DATE the municipal social security office had undertaken to draw up a proposal for clearing his debts , implying an understanding that the municipality would not lodge bankruptcy proceedings . In an alternative submission , the applicant asked ORG to hold a “ main hearing ” ( “ hovedforhandling ” ) in order to examine certain witnesses . PERSON could testify that the record of the meeting on DATE erroneously concluded that he should give priority to paying his debts as she had attended as his witness and representative at the said meeting . Should ORG wish to do so , it could also take evidence from CARDINAL of his clients , who could testify about the applicant ’s prospective future earnings , though the applicant considered it would not serve his commercial interest to call a client to testify . He moreover questioned the honesty and professionalism of the expert who had failed to visit the inside of his house before making the assessment of CARDINAL DATE . The applicant emphasised that since the earlier expertise made by another expert on CARDINAL DATE , he had invested work and money in the house , bringing the estimated “ technical ” value of ORG CARDINAL ( as of CARDINAL DATE ) up to ORG CARDINAL . In the applicant ’s submission , it was the technical value ( as opposed to the sales value ) that had to be taken into account in determining the issue of insolvency .

In its decision ( kjennelse ) of DATE , ORG overturned ORG decision . ORG observed at the outset that there was no ground for dismissing the case . Nor did it find any basis in LAW ( tvistemålsloven ) for holding a hearing . As to the merits it concluded that the conditions for declaring the applicant bankrupt were fulfilled . It considered inter alia , that his total debts amounted to at least NOK CARDINAL . His only asset of importance was his real estate in ORG . Having regard to the assessments of its value of CARDINAL DATE and CARDINAL DATE and to the investments allegedly made by the applicant , ORG fixed the property ’s sales value , which was decisive for the assessment of insolvency , at a maximum of ORG CARDINAL . There was thus a deficit of approximately ORG CARDINAL . His capacity for future earnings were most uncertain and could in any event only accrue in the distant future .

The applicant was notified of ORG decision on DATE . An annex to the decision informed him of the possibility to appeal to ORG of ORG ( Høyesteretts kjæremålsutvalg ) within DATE from the notification and subject to advance payment of the procedural costs . By letter of CARDINAL DATE to ORG , the applicant protested against the procedure and the date of notification , so close to the DATE and New Year holidays , making it impossible to consult a lawyer . He also stated his intention to lodge an appeal .

By letter of DATE , ORG informed the applicant that his submissions of DATE did not fulfil the legal requirements for lodging an appeal and offered its assistance in drawing up an appeal , as provided for in the law on cases of unrepresented petitioners . The applicant did not take any further steps in this connection .

Under LAW ( CARDINAL ) of LAW , an appeal to ORG of the kind lodged in the present case - interlocutory appeal ( kjæremål ) - should as a rule be decided by ORG without an oral hearing . A hearing was only to be held in exceptional cases , in order to avoid an excessive burden on the judiciary . Such hearings were not limited to certain types of cases and were to be held essentially in the same manner as ordinary appeals . No appeal lay against the court ’s decision to hold a hearing . According to case - law and legal doctrine this applied also , in principle , to a decision not to hold a hearing . Where ORG had taken a decision on whether or not to hold a hearing , the procedure by which it was reached could be challenged but not the decision itself ( pp . CARDINAL - CARDINAL of Mr PERSON commentary to LAW ( GPE , GPE , GPE , DATE ) . Under LAW ( CARDINAL ) no . CARDINAL of the LAW , an appeal could be lodged with ORG of ORG on the ground that ORG had made a procedural error in relation to its decision .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the PERSON newspaper published a piece written and signed by the applicant . The entire text of the piece , entitled “ [ My ] statement ” ( « Заявление » ) , read as follows :

“ The voting ballots were still being counted , but it was already clear that General V.A. Shamanov had been elected Governor of LOC . That very night he made the following verbatim statement : ' Let me tell you bluntly and frankly – the local press has to be dealt with thoroughly ' .

During his electoral campaign General [ Shamanov ] made many promises to the residents of GPE . But , in my opinion , he has kept CARDINAL : [ he is ] ' waging war ' against the independent press , against journalists . The judicial proceedings in LOC 's action against the highly talented GPE journalist PERSON are still pending . But the criminal prosecution of a journalist is exceptional . PERSON , editor - in - chief of the ORG newspaper , has been sentenced to DATE of correctional labour . Let us leave aside the legal aspects of that case : the full text of the court judgment has not yet been published and I hope there will be many more judicial proceedings , not only in GPE , but also in GPE . But there is a moral dimension to this case . How can CARDINAL robust men , of whom CARDINAL are Generals and CARDINAL is a Hero of GPE , wage a battle against a woman who is still a young girl ! This brings to mind Shamanov 's support for Colonel PERSON , who killed a CARDINAL-year - old [ NORP ] girl . No shame and no scruples ! ”

( “ Еще шел подсчет голосов , но было уже ясно : губернатором PERSON области избран генерал Шаманов В.А. Этой же ночью он заявил буквально следующее : « С местной прессой , прямо и откровенно скажу , предстоит детально разобраться » .

Во время избирательной кампании генерал обещал ульяновцам много. Но выполнил , с моей точки зрения , только одно : « воюет ORG с независимой прессой , с журналистами. Еще продолжаются суды по иску GPE к талантливейшему журналисту – ульяновцу FAC Но преследование журналиста в уголовном порядке – это уникальный случай. ORG – главный редактор газеты « GPE известия GPE - осуждена на год исправительно-трудовых работ. Оставим пока в стороне юридический аспект этого дела : еще не опубликован полный текст решения суда , по этому поводу будет , надеюсь , еще много судов , причем не только в Ульяновске , но и в GPE Но есть моральный аспект в этом деле. Как могут три здоровых мужика , из которых два – генерала , в том числе один – даже герой PERSON , ORG воевать ORG с женщиной , более того – с молоденькой девчонкой ! Почему-то вспоминается поддержка ORG GPE полковника PERSON , убившего CARDINAL-летнюю девушку. Ни стыда , ни совести ! ” )

On DATE Mr Shamanov brought a civil defamation action against the applicant , the editor 's office and the newspaper 's founder – ORG Goryachev - Fond ( “ the Fund ” ) . He claimed that the assertion alleging that he had no shame and no scruples was untrue and damaging to his honour and reputation . He sought MONEY ( ( RUR ) , MONEY ( ORG ) ) in compensation for non - pecuniary damage .

On DATE ORG found for the plaintiff . The court held as follows :

“ In the article the author asserts that Shamanov , Governor of ORG , has no shame and no scruples . The very tenor of the article confirms that the contested statements contain precisely such an assertion . [ The applicant 's ] assertion in this article that the plaintiff has no shame and no scruples is clearly damaging because it impairs his honour , dignity and professional reputation ... The [ applicant ] did not produce before the court any evidence showing the truthfulness of that statement about the plaintiff ... ”

The court ruled :

“ ... the statement to the effect that the plaintiff has no shame and no scruples , published in [ the applicant 's ] piece ... [ is ] untrue and damaging to Shamanov 's honour , dignity and professional reputation ” .

NORP The court held the Fund liable for ORG ( EUR CARDINAL ) and the applicant liable for ORG ( EUR CARDINAL ) in respect of non - pecuniary damage to the plaintiff . The ORG was also ordered to publish , by way of rectification , the operative part of the judgment .

The applicant and the ORG lodged an appeal . The applicant pointed out that ORG had failed to distinguish “ opinions ” from “ statements ” . He submitted that his right to hold and impart opinions was guaranteed by LAW and the contested statement was his personal assessment of Mr LOC 's actions . Furthermore , he argued that the contested expression was an idiom in the NORP language , and was commonly used to give an ethical appraisal of a person 's deeds .

On DATE ORG upheld the judgment of DATE . The court endorsed the conclusions of the first - instance court and added :

“ The arguments ... about the court 's confusion of the term ' opinions ' and the term ' statements ' ( сведения ) can not be taken into account because [ the applicant 's ] opinion had been printed in a public medium and from the moment of publication it became a statement . ”

The applicant 's subsequent attempts to initiate supervisory review proceedings proved unsuccessful . On DATE ORG of GPE dismissed his application for the institution of supervisory - review proceedings .

Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .

Article CARDINAL provides that an individual may apply to a court with a request for the rectification of “ statements ” ( “ сведения ” ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .

The ORG ( in force at the material time ) provided that , in order to be considered damaging , statements ( “ сведения ” ) had to be untrue and contain allegations of a breach , by a person or legal entity , of laws or moral principles ( commission of a dishonest act , improper behaviour at the workplace or in everyday life , etc . ) . Dissemination of statements was understood as the publication of statements or their broadcasting , inclusion in professional references , public speeches , applications to ORG officials and communication in other forms , including oral , to CARDINAL another person ( section CARDINAL ) .

Section CARDINAL of the ORG governed the distribution of the burden of proof in defamation cases . The plaintiff was to show that the statements had indeed been disseminated by the defendant . The defendant was to prove that the disseminated statements had been true and accurate .


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON .

They were represented before the ORG by PERSON , a lawyer practising in PERSON .

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

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

NORP The applicants’ grandmother owned a piece of land situated in a regional capital .

In ORG that land is recorded on CARDINAL separate Certificates of Ownership relating to a number of plots occupying a total surface area of QUANTITY .

The plots recorded in CARDINAL of these Certificates are classified as arable land and garden whereas the land recorded in the other ORG , having a surface area of QUANTITY , is classified as land in a built - up area .

This piece of land resembles a strip bordered on both sides by plots on which neighbours have their houses . According to the ORG , this piece of land used to be on the outskirts of town but because of the growth of the town its built - up areas have reached this property .

In DATE , when the land in question was de facto occupied by a socialist agricultural co - operative , CARDINAL high - voltage pylons were erected on it , subject to the provisions of the CARDINAL LAW ( Law no . QUANTITY . ) . The pylons themselves cover QUANTITY of the surface of the land in question , but the protective zone around them covers an area of QUANTITY .

The applicant ’s grandmother was neither invited to take part in nor informed of the administrative proceedings concerning the construction of the electricity main of which the pylons were a part . She did not receive any compensation . Nevertheless , no decision appears to have been taken depriving her of the title to the land .

DATE the applicants’ grandmother , and later also the applicants , made a large number of applications to various courts , public bodies , members of parliament and other officials with a view to obtaining compensation in respect of the restrictions resulting from the erection and continued presence of the pylons on the land in question .

Meanwhile , in DATE the applicants became the owners of the land by way of a gift from their grandmother , who then passed away in DATE .

As the owners , from DATE the applicants became liable to pay realestate tax on the land . In DATE the amount of tax payable in respect of the land as a whole was MONEY ( ORG ) , of which LAW related to the proportion of the surface taken up by the pylons .

As the owners , the applicants became liable to maintain the land so that the use of the adjacent plots was not hindered .

In the applicants’ submission , with the installations on it , their land can neither be sold nor made use of for construction . Nevertheless , in DATE , the applicants sold the plot classified as being in a built - up area ( see paragraph CARDINAL above ) to another individual .

As submitted by the Government , and acknowledged by the applicants , the remainder of the land can be used for farming , and it is used as a garden for growing fruit trees and vegetables .

On DATE the applicants brought and later amended an action eventually directed against the local electricity - distribution company and aimed at obtaining an amount of money in compensation for the use of the surface occupied by the pylons .

The defendant of the action is a joint - stock company and , as such , CARDINAL of its statutory purposes is to generate profit . It has been submitted by the applicants , and not contested by the Government , that the defendant is owned by another company , of which the ORG owns PERCENT of the stock .

As to the substance , for each square metre occupied by the pylons , the applicants claimed the equivalent of approximately EUR CARDINAL.CARDINAL per year .

In support of their claim , the applicants relied , inter alia , on Articles CARDINAL § CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL , arguing that while the impugned pylons served to make a profit for the defendant , the applicants not only had to endure the presence of the pylons but were also incurring costs related to the plot ’s maintenance .

The action was examined and dismissed at CARDINAL levels of ordinary jurisdiction : by ORG súd ) on DATE and , following an appeal by the applicant , by ORG ( PERSON súd ) on DATE .

The courts applied section CARDINAL ) of the DATE LAW , which was still in force by virtue of section ORG ) of MONEY ( Law no . CARDINAL/CARDINAL Coll . ) and section CARDINAL(CARDINAL ) of QUANTITY ( Law no . QUANTITY . ) . Their reasons may be summarised as follows :

The DATE LAW authorised the construction of electricity mains , including the establishment of support points , such as the pylons on the applicants’ land , on the real property of any party .

As a matter of principle , no compensation was envisaged . However , if the owners or users of the real property concerned were significantly encumbered in its use they could claim adequate CARDINAL - off compensation .

A claim for such CARDINAL - off compensation had to be filed within DATE of the entry into use of the installation or else it would lapse .

The applicable legislation provided for an ex lege easement , which was a sui generis notion within public law . It was accordingly not possible to advance a compensation claim on the basis of private law . The easement in question was always to be governed by the legal rules applicable at the time of its creation . The subsequent legislation did not envisage any compensation other than the CARDINAL - off compensation under LAW .

In support of this position , the courts also relied on a decision of ORG ( Ústavný súd ) of DATE ( see paragraph CARDINAL below ) .

In the applicants’ case , at the relevant time no compensation had been claimed or , consequently , obtained . The claim of the applicants’ grandmother had thus lapsed , there had not been any legal basis for its renewal , and there was no basis for any new claim of the applicants’ own .

The courts equally held that the right to a fair trial did not imply the right to a successful outcome in the proceedings ; that the ex lege easement served the public interest and that it did not infringe on the applicants’ property rights .

On DATE the applicants lodged a complaint with ORG ( Ústavný súd ) under LAW no . PERSON . , as amended ) . They advanced similar arguments to those outlined above and alleged a violation of their rights under LAW No . CARDINAL .

In addition , the applicants submitted that they accepted the public interest in having the installation and that the essential problem was the complete lack of any compensation , which they considered disproportionate . In particular , the ordinary courts had failed to respond to their argument that their grandmother could not have claimed any compensation at the time of the creation of the easement because she had de facto not been using it and compensation could only be claimed by someone who had been significantly encumbered in the use of their property .

The applicants further relied on the judgments ( nález ) of ORG ( Ústavní soud ) of GPE having a similar legal tradition – in cases nos . Pl . ÚS CARDINAL/CARDINAL , of DATE , and ORG of DATE . These judgments concerned , inter alia , the continued application of the compensation regime set up under LAW . In these judgments , an ideological distinction was observed between the “ old law ” , that is to say , that of the “ old ( NORP ) regime ” prior to DATE , and the law applicable under the subsequent democratic constitution . This distinction reflected the political and economic changes that had taken place .

The quoted judgments recognised that , while there was a general continuity with the old law , there was a discontinuity in respect of the values of the old regime . The interpretation and application of the old rules had thus currently to take due account of the need for the protection of human rights and fundamental freedoms , including the protection of property . The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain . While the lawfulness of the creation of an ex lege easement as such was undisputed , where the applicable public - law legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement , the relevant provisions of private law were to be used as an alternative . Such provisions provided for compensation in respect of running costs , which was to be agreed on by those concerned or to be ordered by a court . A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement .

On DATE the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill - founded . It reiterated its established case - law to the effect that a general court could not bear “ secondary liability ” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure . However , no such procedural claim had been advanced and , in any event , no procedural issue had been established . The ordinary courts’ judgments were supported by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification .

The Charter ( Constitutional Law no . CARDINAL/CARDINAL ORG . ) was introduced into the legal order by way of a constitutional law which was enacted by ORG of the NORP and GPE on DATE and which entered into force on DATE . The law remains in force in GPE DATE .

The relevant part of LAW provides :

“ CARDINAL . Everyone has the right to own property . Each owner ’s property right shall have the same content and enjoy the same protection . [ The right of ] inheritance is guaranteed .

The law shall designate the property necessary for securing the needs of society as a whole , the development of the national economy , and public welfare , which may be owned exclusively by the ORG , a municipality , or by designated legal persons ; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the NORP and GPE .

Ownership entails obligations . It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests . It may not be exercised so as to cause harm to health , nature , or the environment beyond the limits laid down by law .

Expropriation or some other mandatory limitation upon property rights is permitted in the public interest , on the basis of law , and for compensation . ”

The relevant part of LAW provides :

“ CARDINAL . Everyone shall have the right to own property . The property rights of all owners shall be uniformly construed and equally protected by law . The right of inheritance is guaranteed .

Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest , in accordance with the law and for adequate compensation . ”

Article CARDINAL § CARDINAL :

“ The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra ORG mores . ”

Article CARDINAL :

“ The owner shall be entitled , within the limits prescribed by law , to hold the object of his ownership , to use it , to benefit from its fruits and proceeds and to make dispositions in respect of it . ”

Article CARDINAL :

“ All owners shall have the same rights and duties and shall be granted the same legal protection . ”

Article CARDINAL :

“ CARDINAL . The owner of a thing must endure the use of his thing [ by another person ] in a state of emergency or in a pressing public interest , for the necessary time , to the necessary extent , and in return for compensation , if the purpose can not be achieved otherwise .

In the public interest , ... the ownership of [ a thing ] may be restricted if the purpose can not be achieved otherwise , provided that the expropriation or restriction has a basis in law , and only for that purpose and for compensation . ”

Article CARDINALn et seq . provides basic rules in relation to easements :

“ CARDINAL . Easements shall constitute a restriction on the owner of real property for the benefit of someone else , so that the owner must endure , refrain from doing or do something . The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person .

Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property .

Unless the participants agree otherwise , the person who is entitled to use somebody else ’s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair ; however , if the thing is co - used by its owner , the owner must bear these costs in proportion to the extent of the joint use . ”

The relevant part of LAW provides :

“ Easements can arise on the basis of a written contract , on the basis of a will , in connection with the outcome of inheritance proceedings , on the basis of an approved agreement among the heirs , on the basis of a decision by the competent authority , or by operation of law . ”

Under section CARDINAL(CARDINAL ) of the DATE LAW , an enterprise active in the energy sector was entitled : ( a ) to build and operate electrical installations on other ORG real property to the extent permitted under the building permit , to erect support pylons , to connect the plots by conductors and to establish the electricity main on them ; ( b ) to access the real property directly concerned for the purposes of the construction , operation , maintenance , and modification or removal of the main ; and ( c ) to remove or prune trees obstructing the main .

Subject to section CARDINAL(CARDINAL ) , the exercise of the entitlements pursuant to section CARDINAL(CARDINAL ) was subject to no compensation . However , if the owners or users of real property not belonging to the ( socialist ) ORG were significantly encumbered in the use of the property because of the establishment of the main , they could a claim with the construction authority for the company concerned to pay them adequate CARDINAL - off compensation . The claim was to be submitted within DATE of the entry of the installation into permanent use on the pain of expiry .

The DATE LAW was abolished and replaced on DATE by the DATE LAW , which in turn was abolished and replaced as of DATE by LAW , which in its turn was eventually abolished and replaced on DATE by the DATE LAW ( Law no . CARDINAL Coll . ) .

Under all the Acts , however , entitlements in respect of other ORG real property , and limitations on the use of it , which had been established previously remained intact .

Section DATE Energy Act , as applicable at the relevant time , provides for a number of safeguards and guarantees to the owners of real property affected by industrial activities in the energy sector , including :

- rules on elimination and limitation to the minimum possible of any interference , restrictions , expenses and losses on the part of the owners due to activities of holders of licences to carry out business in the energy sector ;

- regulation of access to the real property affected ;

- regulation of measures to be taken and compensation for expenses incurred in connection with such measures in respect of vegetation undermining the security or reliability of the operation of energy facilities ;

- rules on CARDINAL - off compensation payable to the owners if they are restricted in the ordinary use of their real property ; and

- rules on CARDINAL - off compensation for the creation of an easement in rem on the property concerned , such easement consisting of the duties and restrictions imposed under LAW .

Similar provisions to those referred to in the precedent paragraph are contained in the DATE LAW . The easements in question are to be registered with ORG and the licence holder is to inform the owner of the real property concerned of the registration in writing ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of the DATE LAW ) .

By way of an action in the ORG ( case no . CARDINALC CARDINAL/CARDINAL ) , an individual sued a municipality and a public - transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system . For unclear reasons the applicants were third parties to the proceedings .

In the context of those proceedings , ORG challenged before ORG the constitutionality of section ORG ) of the DATE LAW , applicable by virtue of section CARDINAL(CARDINAL ) of QUANTITY , which had replaced LAW .

On DATE ORG dismissed the challenge ( case no . PL . ÚS CARDINAL/CARDINAL ) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation . Providing for new compensation claims would amount to enabling new restitution claims , which the lawmaker was free under LAW to choose not to do .