Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;Antonella Mularoni;Christos Rozakis;Georg Ress;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;John Hedigan;Karel Jungwiert;Khanlar Hajiyev;Kristaq Traja;Lucius Caflisch;Luzius Wildhaber;Matti Pellonpää;Nicolas Bratza;Volodymyr Butkevych

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

On DATE he was involved in an accident with a cyclist on the way to school and sustained injuries including a broken left arm . On CARDINAL DATE he left hospital . He subsequently entered into negotiations with the cyclist ’s liability insurers , who paid him a sum of MONEY ( ORG ) in respect of any damage he might have sustained . The accident insurers for ORG , the authority responsible for the applicant ’s school , paid him a temporary disability pension ( PERSON ) until DATE . They also paid him QUANTITY in compensation .

The applicant subsequently instituted proceedings against ORG accident insurers , in the course of which a considerable number of expert reports and medical opinions were produced .

In a judgment of DATE , ORG ( ORG ) , which itself had asked experts in the fields of orthopaedic surgery , neurology and , at the applicant ’s request , hand surgery to produce reports on his medical problems , acknowledged that he had become PERCENT permanently disabled as a result of the accident and was entitled to a pension on that account with effect from DATE .

Since DATE , after falling on his left arm or hand in DATE , the applicant has been in receipt of an occupational - disability pension of approximately LAW .

NORP The applicant instituted a second set of proceedings against ORG accident insurers , seeking in particular the award of an increased pension . He submitted that the accident had caused him mental damage and a stomach disorder . In a judgment of DATE , ORG dismissed the applicant ’s claim . It based its decision on CARDINAL reports by experts in neuropsychiatry whom it had appointed during the proceedings , on a large number of other medical reports , some of which had been drawn up shortly after the accident , and on files from other administrative and judicial proceedings concerning the applicant .

On DATE , after the negotiations aimed at securing increased payments had failed , the applicant brought an action against the cyclist ’s insurance company in ORG ( Landgericht ) , in particular seeking damages and a DATE pension , among other claims . On DATE , after holding several hearings and taking evidence about the accident from CARDINAL witnesses DATE , ORG delivered a partial decision . It held that the applicant ’s liability for the accident was limited to PERCENT and that he was entitled to damages for PERCENT .

On DATE ORG ( Oberlandesgericht ) dismissed an appeal by the applicant . On DATE the applicant appealed on points of law . He twice requested an extension of the time he had initially been allowed for filing his grounds of appeal . On DATE the applicant ’s new representative applied for a third extension until DATE . On DATE ORG ( ORG ) dismissed the appeal .

In DATE the proceedings for the assessment of the damages and the pension resumed in ORG . The applicant was represented by counsel . On DATE the court held a hearing .

On DATE it ordered an expert medical assessment . On DATE the applicant applied for the CARDINAL judges dealing with his case to withdraw , but his application was dismissed . On DATE ORG proposed a Professor PERSON to draw up the expert report that had been ordered . On DATE the applicant appealed against the court ’s decision of CARDINAL DATE . On DATE ORG dismissed his appeal .

On DATE the court appointed Professor PERSON as the expert . Professor PERSON informed the court that it would be preferable for the report to be drawn up by a specialist in accident surgery and that it was likely to take DATE to produce . On DATE , following a reminder from the court , the applicant agreed to the appointment of a surgical expert .

On DATE a Professor PERSON was proposed . The applicant objected to his appointment on the ground that he was not a specialist hand surgeon ( GPE ) . On DATE the court accordingly asked Professor PERSON to draw up the expert report . On DATE the applicant informed the court that he agreed with the deadline set ; he insisted , however , that there should not only be an expert assessment by a general surgeon but also CARDINAL by a specialist hand surgeon . Professor PERSON informed the court that he was unable to draw up the report as requested because the fractures observed in the applicant ’s forearm did not come within his field of expertise but were a matter for a specialist in traumatology or an orthopaedic surgeon . On DATE the defendant proposed appointing Professor T. On DATE , following a reminder from the court , the applicant suggested appointing Professor PERSON or , failing that , a Professor PERSON

On CARDINAL DATE the court appointed Professor PERSON , who informed it that an additional assessment by a specialist hand surgeon was necessary and that it was likely to take DATE to produce the report . On DATE the court informed the applicant that Professor PERSON had refused to draw up the report and asked him whether Professor PERSON , whom he had suggested , had already drawn up an expert report on him . On DATE the court informed the parties that Professor PERSON had retired but that his successor , Professor PERSON , would be appointed as expert . On DATE Professor PERSON informed the court that it would take him DATE to draw up the report .

On DATE the applicant informed the court that the accident had caused him severe depression , and asked it to order an expert psychiatric assessment .

On DATE the court asked the expert how his report was progressing . The expert replied that the report would be ready in DATE . On CARDINAL DATE the court again contacted the expert . He initially replied that the report would be completed by DATE but subsequently stated that , owing to an excessive workload , he would need DATE . Professor PERSON ’s report was received at the court on DATE . The applicant criticised Professor PERSON ’s work and requested that he submit an additional report . He also requested an expert assessment ( Schmerzgutachten ) of the pain he had felt since the accident . On DATE the court granted the defendant company an extension of the time it had been allowed for filing observations on the report ; it submitted its observations on DATE . On DATE the applicant ’s representatives informed the court that as their client had been ill they would not be able to submit their observations in reply until DATE .

On DATE the applicant ’s representatives informed the court that the parties had not been able to reach a partial friendly settlement . They subsequently began fresh out - of - court negotiations on a friendly settlement , asking on CARDINAL successive occasions for the deadline to be put back . On DATE they informed the court that the negotiations had failed and asked for the proceedings to be resumed . The defendant stated that the failure of the negotiations had been due to the applicant ’s unreasonable demands .

On DATE the president of the division dealing with the case asked the parties to inform him whether they still wished to submit observations . In a note of DATE , the reporting judge stated that the proceedings had not been able to progress more quickly owing to an excessive workload and to certain priority cases . In a note of DATE he made a similar observation , referring to a number of periods of leave , in particular sick - leave , in addition to the reasons stated previously .

On DATE the president of the division asked the parties to inform him whether they intended to submit any further observations . The applicant replied that negotiations for an out - of - court settlement could take until DATE and that he reserved the right to submit further observations if they were unsuccessful . On DATE he informed the court that the negotiations had failed and asked for an expert assessment of his total loss of earnings resulting from the accident . In support of that request , he submitted an expert psychiatric assessment that had been drawn up during the proceedings in ORG ( see paragraph CARDINAL above ) . On DATE the defendant informed the court that the negotiations had failed because the applicant had refused to make payment of the sum negotiated conditional on the findings of an expert assessment .

On DATE the applicant requested the court to deliver a decision promptly , seeing that the proceedings had already taken DATE . In support of his request he submitted an expert psychiatric assessment of his state of health . In a note of DATE , the court pointed out to him that the proceedings had been pending only since DATE .

On DATE the applicant revised his claim , which now concerned a lump sum of MONEY ( DEM – approximately ORG CARDINAL ) and a DATE pension of DEM CARDINAL,CARDINAL . On DATE the court assessed the value of the subject matter of the case at DEM CARDINAL .

On DATE the applicant asked the court when it would be holding a hearing . On DATE the court set the case down for hearing on DATE and asked the applicant to provide information , concerning in particular his alleged loss of earnings . It was important to establish his likely career path had the accident not taken place and the extent to which the physical injury from which he was now suffering was the direct consequence of the accident .

On DATE , having obtained the parties’ consent at the hearing , the court decided to admit in evidence the file from the proceedings in ORG . The file could not be forwarded immediately because it was at ORG ( Bundessozialgericht ) .

On DATE , at the applicant ’s request , the court ordered Professor P. to supplement his expert report of DATE . He replied that it would take him DATE to do so .

On DATE the court asked the applicant to give his consent in writing to its consulting the file in the possession of ORG . Pointing out that he was undergoing treatment abroad which was expected to take until DATE , the applicant asked for an extension of the time allowed for his reply . On DATE the court told him that he had not provided sufficient evidence of the injury to his forearm and asked him to inform it whether he intended to pursue his request for an assessment by a specialist hand surgeon . The applicant asked for a further extension of the time allowed for his reply . On DATE he stated that he did not agree to the use in evidence of the file from the proceedings in the social courts and requested a further extension with regard to the expert surgical assessment .

On DATE the court ordered the applicant to submit a number of documents and asked Professor PERSON to draw up the additional report . In reply to CARDINAL letters from the applicant it reminded him that he had requested the additional report himself . On DATE the applicant submitted his observations , having twice requested further time to do so . On DATE he personally informed the court by telephone that he no longer required the additional report and only wanted an assessment of his pain , on the ground that he was suffering from neurosis caused by the proceedings ( Prozessneurose ) .

On DATE the court declared inadmissible an application for the judges to withdraw , which the applicant had lodged on DATE .

On CARDINAL DATE the court asked the applicant ’s representatives for clarification as to the additional expert report . On DATE they informed the court that their client no longer wished the report to be produced .

On DATE the President of ORG asked to be sent the file in the applicant ’s case .

On DATE the court decided to appoint a Professor X to draw up an expert report concerning in particular the onset and cause of the pain suffered by the applicant . It also requested the applicant to provide certain items of information .

On DATE the applicant again applied for the members of the court to withdraw . On DATE he asked for an extension of the time allowed for submitting the information requested . On DATE he objected to the expert who had been appointed , proposed another one ( Dr J. ) , sought leave to consult the file and applied for a further extension of DATE . On DATE the court invited him to submit reasons for his objection to the expert , proposed other experts and gave him until DATE to produce the information requested .

On DATE the applicant personally informed the court by telephone that he was unable to inspect the file because he had broken his arm . On DATE the defendant proposed an expert . The applicant expressed the view that the expert proposed , not being a specialist in the field , was not competent to carry out an assessment of his pain , and asked the court to deliver a partial decision .

On DATE Dr J. informed the court that he would be unable to draw up a report before DATE . On DATE the court appointed Professor X as expert and dismissed the applicant ’s reservations as to his professional credentials . It pointed out that it was unable to give a partial decision . The applicant objected that Professor X had already acted as expert , and requested that an “ interdisciplinary ” report be produced in addition to the report on his pain .

On DATE the applicant applied for the reporting judge in his case to withdraw .

On DATE the president of the division dealing with the case held discussions with the parties’ representatives with a view to reaching a friendly settlement and scheduled a hearing to that end for DATE . At the hearing the applicant stated that he would not let Professor X examine him . The president asked him to stop telephoning the judges dealing with the case and stated that , with a view to speeding up the proceedings , he would not be so willing in future to accept requests to consult the file . On CARDINAL DATE the court , in reply to a further request by the applicant , informed him that he could consult the file at the court ’s registry but that , to avoid delays in dealing with the case , the file would not be sent to the registry of ORG in Stade , his place of residence .

On DATE a division of ORG dismissed CARDINAL applications by the applicant for the reporting judge to withdraw .

On DATE the applicant again sought leave to consult the case file at the registry of the Stade ORG .

On DATE , after learning that the applicant had instituted disciplinary proceedings against Professor X , the court appointed Professor W. to replace him as expert . On DATE the applicant left a message for the president of the division on his answering machine , expressing his concerns about the choice of expert . The applicant ’s representatives also expressed reservations as to Professor PERSON ’s credentials and proposed another expert . The president of the division informed the parties that Professor PERSON had stated that he was prepared to draw up the report , and indicated that he was standing by his choice of expert despite the applicant ’s reservations about him .

On DATE ORG informed the court that the applicant ’s medical examination was scheduled for DATE . On DATE Professor PERSON returned the file to the court and asked it to relieve him of his duties on the ground that the applicant had stated his opposition to the production of the report and had contacted the hospital ’s legal department to tell them so . On DATE the court sent the file back to Professor PERSON , asking him to wait and see whether the applicant kept his appointment for the medical examination . On DATE Professor PERSON informed the court that he had been able to examine the applicant and asked whether a further expert assessment on pain therapy could be produced by a Professor PERSON On DATE the court ordered a further examination of the applicant by Professor Y.

On DATE Professor PERSON ’s report was received at the court . The president of the division informed the expert that further explanations were necessary . On DATE the hospital informed the court that LOC , from its psychiatric department , was prepared to examine the applicant . On DATE Professor PERSON informed the court that he would be submitting his final conclusions in collaboration with Dr PERSON The applicant ’s representatives proposed another expert who , in their opinion , was better qualified to examine their client . On DATE the court eventually appointed a Dr W. as expert . Dr PERSON replied that the case was a difficult and complex one requiring QUANTITY work and that he would not be able to submit the report until DATE . On DATE the court decided to ask the parties to pay advances on the fees for the production of the expert report , but the applicant refused to do so . His representatives objected to the decision of DATE but paid the advances as requested . On DATE the court dismissed the objection .

On DATE the court , in reply to a request by the applicant , decided not to supplement its decision of DATE on the production of the expert report .

On DATE Dr W. ’s report was received at the court . It was forwarded to the parties on DATE . On DATE the applicant ’s representatives requested an examination of their client by a different expert .

On DATE the court ’s registry asked to be sent the file .

DATE . On DATE the applicant submitted an expert report he had himself commissioned from a PERSON

On DATE the court held a hearing at which Professor PERSON gave evidence and PERSON and PERSON were present .

In a judgment of DATE , the court awarded the applicant a total of ORG for non - pecuniary damage . Taking into account the payments already made after the accident , the defendant was required to pay the outstanding sum of ORG under this head and ORG CARDINAL.CARDINAL for loss of earnings . The court dismissed the remainder of the applicant ’s claim and ordered him to pay PERCENT of his costs .

Relying on the expert reports ordered in the course of the proceedings , on the judgments of ORG and on various other expert reports and medical opinions produced in separate proceedings , the court outlined the injuries sustained by the applicant in the accident and examined whether any other forms of damage , such as chronic pain and mental disorders , were attributable to the accident as he claimed them to be . It concluded that there was not a sufficiently established link between the accident and most of the damage alleged . In assessing non - pecuniary damage , the court had regard to the circumstances of the accident , the subsequent conduct of the parties and the relevant case - law of ORG . It pointed out that the length of the proceedings could be taken into account only in small measure because the defendant could not be held responsible for the fact that the applicant had not brought his claim until DATE after the accident , making it more difficult to adduce evidence , that he had refused to allow the file from the proceedings in ORG to be used in evidence , and that he had objected on several occasions to the choice of experts appointed .

The applicant subsequently applied to ORG for legal aid in order to appeal against the judgment .

On DATE the applicant lodged a constitutional complaint with ORG , stating :

“ The proceedings at first instance before ORG in case no . CARDINAL O CARDINAL/CARDINAL have lasted since DATE and have irreparably destroyed my existence .

I am lodging a constitutional complaint on account of an infringement of LAW of LAW because the excessive length of the proceedings is no longer compatible with the rule of law and I request the ORG to find a breach of the law and of LAW in that LAW has not been complied with .

Evidence : ORG , no . CARDINAL O CARDINAL/CARDINAL . Information : no . QUANTITY .

Please inform me if you need any other documents . ”

On DATE ORG requested information on the state of the proceedings from ORG , which informed it on DATE that it had scheduled a hearing for DATE . On DATE it sent the applicant ORG reply .

On DATE and DATE the applicant filed additional observations .

On DATE ORG , sitting as a panel of CARDINAL judges , decided not to examine the applicant ’s complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision , in which no reasons were given , stated :

“ The complaint is not accepted for adjudication . No appeal lies against this decision . ”

On CARDINAL DATE the applicant again complained to ORG about the length of the proceedings . His complaint , which referred to his previous one , was worded as follows :

“ I , the undersigned , Mr GPE , residing at ... , hereby lodge a constitutional complaint on account of a breach of the rule of law [ ORG ] by ORG ( no . CARDINAL O CARDINAL/CARDINAL ) , because the proceedings in that court continue to be delayed . ”

On DATE ORG , sitting as a panel of CARDINAL judges , decided not to examine this new complaint ( no . CARDINAL BvR CARDINAL/CARDINAL . In its decision it stated :

“ Since the requirements of section CARDINALa(CARDINAL ) of ORG have not been satisfied , the constitutional complaint can not be accepted for adjudication . It does not raise any issue of fundamental significance [ grundsätzliche GPE ] . Nor is there any need to examine the complaint for the purpose of safeguarding the constitutional rights which the complainant alleges to have been infringed , since it does not have sufficient prospects of success . The complaint lacks substance in that it can not be ascertained from the complainant ’s observations whether the length of the proceedings [ in ORG ] has exceeded a reasonable time .

In accordance with the third sentence of section CARDINALd(CARDINAL ) of ORG , no further reasons for this decision are necessary . No appeal lies against the decision . ”

On DATE the registry of ORG informed the applicant that it was not possible to reopen the proceedings .

On DATE the applicant applied to ORG for legal aid in order to bring an action for damages against the ORG on account of the excessive length of the proceedings in issue .

On DATE ORG refused his application on the ground that the delays in the proceedings had not been attributable to the justice system but were due to the courts’ excessive workload . It added that the applicant had not provided sufficient details of the damage allegedly sustained .

On DATE ORG upheld that decision , basing its conclusion , in particular , on the Government ’s observations in the present case before FAC , which the applicant had produced in the proceedings before it .

The relevant provisions of LAW ( PERSON über das Bundesverfassungsgericht ) of DATE , in its version of CARDINAL DATE , read as follows :

“ ( CARDINAL ) Any person who claims that CARDINAL of his basic rights or CARDINAL of his rights under LAW and LAW , DATE , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG .

( CARDINAL ) NORP If legal action against the violation is admissible [ zulässig ] , the complaint of unconstitutionality may not be lodged until all remedies have been exhausted . However , ORG may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant ... ”

“ ( CARDINAL ) A complaint of unconstitutionality shall require acceptance prior to a decision .

( CARDINAL ) It is to be accepted

( a ) if it raises a constitutional issue of general interest ; or

( b ) if this is advisable for securing the rights mentioned in LAW ) ; or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage [ besonders schwerer PERSON ] for the complainant . ”

The third sentence of section CARDINALd(CARDINAL ) provides that no reasons need be given for a decision by a panel of CARDINAL judges not to accept a constitutional complaint for adjudication .

“ ( CARDINAL ) If the complaint of unconstitutionality is upheld , the decision shall state which provision of LAW has been infringed and by which act or omission . ORG may at the same time declare that any repetition of the act or omission complained of will infringe LAW .

( CARDINAL ) NORP If a complaint of unconstitutionality against a decision is upheld , the ORG shall quash the decision [ and ] in the cases contemplated in the first sentence of section CARDINAL(CARDINAL ) above it shall refer the matter back to a competent court ... ”

Article CARDINAL of LAW ) provides :

“ Where a person , in the exercise of a public office entrusted to him , breaches an official duty [ Amtspflicht ] towards a third party , liability shall in principle rest with the ORG or the public authority in whose service the person is engaged . An action by the ORG for indemnity shall remain possible in the event of intentional wrongdoing or gross negligence . The possibility of bringing an action for damages or indemnity in the ordinary civil courts shall remain open . ”

Article CARDINAL of LAW ( ORG ) provides :

“ CARDINAL . A public servant who wilfully or negligently commits a breach of his official duties towards a third party shall afford redress for any damage arising in consequence . If the public servant merely acted negligently , he may be held liable only if the injured party is unable to obtain redress by other means .

A public servant who commits a breach of his official duties when adjudicating on an action may not be held liable for any damage sustained unless the breach of duty constitutes a criminal offence . This provision shall not apply where the breach of official duties consists in a refusal to discharge a function or a delay in performing it contrary to professional duty .

The obligation to afford redress shall not arise where the injured party has wilfully or negligently omitted to avoid the damage by means of a legal remedy . ”

By LAW , in the version in force until DATE , compensation for non - pecuniary damage could be awarded only if it was provided for by law . In this connection , LAW , which was in force until DATE , provided for compensation only in the event of physical injury or deprivation of liberty . The new LAW , as in force since DATE , has not introduced any amendments relevant to the matters in issue in the instant case .

According to the settled case - law of ORG , LAW , in conjunction with the principle of the rule of law as enshrined in LAW of LAW , guarantees effective protection by the law . The rule of law dictates that , in the interests of legal certainty , legal disputes must be settled within a reasonable time ( angemessene PERSON the parties and any other persons ( experts or others ) acting independently of the court . The longer the proceedings as a whole or at CARDINAL particular level of jurisdiction , the more pressing the obligation on the court to take steps to expedite or conclude them ( see , among other authorities , the decisions of DATE , no . CARDINAL ORG CARDINAL/CARDINAL , published in the Reports of Judgments and Decisions of ORG , volume CARDINAL , p. CARDINAL ( at p. CARDINAL ) , and of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports , volume CARDINAL , p. CARDINAL ( at p. CARDINAL ) ) .

Where ORG considers that the length of pending proceedings has been excessive , it holds that there has been an infringement of LAW and requests the court dealing with the case to expedite or conclude the proceedings .

For example , in its decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL – see LAW ( dec . ) , no . CARDINAL/CARDINAL , DATE ) , concerning the length of proceedings that had lasted DATE , it held :

“ ... In view of the exceptional fact that the proceedings had already lasted DATE by the time the case reached ORG , that court should not simply have treated it as an ordinary complex case . On the contrary , it should have ... used all available means to expedite the proceedings . If necessary , it should also have sought ways of lightening its own workload .

It is not for ORG to order the courts to take specific measures to expedite proceedings , that being a matter for assessment by the court dealing with the case . The decision [ as to the measures required ] can not be taken in the abstract but must have regard to the specific to the reasons for the length of the proceedings . The fact that ORG was dependent on the collaboration of an expert in the instant case was not an obstacle to expediting the proceedings . By way of example , when selecting the expert ORG should have taken account of the particular need to speed up its examination of the case and , to the extent that it had a choice between several similarly qualified experts , should have attached decisive weight to the time that appeared necessary to draw up the expert report . The court must keep track of the production of the report by setting deadlines . If there are any matters requiring the involvement of several experts , organisational arrangements calculated to allow the experts to work simultaneously , such as making a copy of the file , should be made wherever possible .

... The legal analysis of the case and the assessment of the evidence relevant for establishing the facts are tasks entrusted to the judges . A review of their findings is only possible in the context of an appeal . In the absence of any specific evidence it is not necessary to assess whether ORG may intervene at an earlier stage of the proceedings in exceptional cases , for example , where the court ’s manner of proceeding is arbitrary in that it is not based on any objective reasons . ...

Seeing that ORG has not yet given judgment , ORG must confine itself [ muss sich beschränken ] to a finding of unconstitutionality pursuant to section ORG ) of ORG . ORG is now required , in the light of the above findings , to take effective steps to ensure that the proceedings can be expedited and concluded as quickly as possible . ... ”

Similar reasoning was adopted in decisions of CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , concerning civil proceedings that had lasted DATE , and DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , concerning a case that had been pending before a family court for DATE .

In its decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , concerning civil proceedings pending in the GPE am ORG since DATE , ORG reached the following conclusions :

“ In view of the exceptional amount of time the proceedings have already taken , ORG can no longer simply treat this as an ordinary complex case . The longer the proceedings , the more pressing the obligation on the court to seek to expedite and conclude them . In such circumstances , the court is obliged to take all steps available to it to speed up the proceedings . Where necessary , the reporting judge must ask to be relieved of other duties within the court ...

In accordance with section CARDINAL(CARDINAL ) of ORG , ORG is confined to making a finding of unconstitutionality [ of the length of the proceedings ] . ORG is now required , in the light of the above findings , to take effective steps to ensure that the proceedings can be concluded promptly . ”

In certain decisions ORG , while declining to examine a constitutional complaint lodged with it , has given particular indications to the court complained of . For example , in a decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL , unreported ) , it requested the regional court concerned to expedite the proceedings , which had been pending for DATE , and to give a final decision promptly ( see GPE , no . CARDINAL , § DATE , DATE ) . Similar reasoning was adopted in a decision of CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) concerning the length of civil proceedings lasting DATE at CARDINAL level of jurisdiction , and in a decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) concerning civil proceedings that had been pending for DATE , in which ORG stated that it was assuming that the hearing scheduled for DATE would be held on the appointed date .

In a decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , concerning proceedings which had been pending in ORG for DATE but in which the complainant had reason to believe that his case would not be dealt with until DATE , ORG observed that , according to what was at stake for the parties , a case could call for priority treatment and an exemption from the rule on examining applications in the order in which they were lodged .

DATE . In a number of cases ORG , after finding the length of proceedings to be unconstitutional , has set aside the appellate court ’s refusal to grant the complainant ’s request to expedite the proceedings and has remitted the case to the same court .

For example , in a decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , it set aside a judgment in which a court of appeal had dismissed a special complaint alleging inaction on the part of a family court , and remitted the case to the court of appeal on the ground that there had been a violation of the right to a decision within a reasonable time and that it was not inconceivable that the court of appeal might have reached a different conclusion if it had taken account of the length of the proceedings . The same reasons were given in a decision of CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) . Similar findings were reached in decisions of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , concerning a period of DATE for an application for legal aid , and CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , concerning administrative proceedings that had been pending for DATE .

In case no . CARDINAL BvR CARDINAL/CARDINAL ( decision of DATE ) , concerning a constitutional complaint about the length of proceedings that had ended , ORG had taken DATE to draft its judgment and ORG had considered that , notwithstanding the fact that , by law , judgments were to be drafted within DATE from the date on which they were delivered in public , there were no grounds for allowing the appeal on points of law in the case before it . ORG , holding that there had been an infringement of LAW , considered that such cases could be referred to it as soon as the DATE period had elapsed and remitted the case to a different division of ORG . Similar reasoning was adopted in a decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

In some cases complainants have declared their constitutional complaint to have lost its purpose where , after the complaint has been lodged , the court in question has taken action by scheduling a hearing or giving a decision . In such cases ORG has merely had to rule on costs .

In case no . CARDINAL BvR CARDINAL/CARDINAL ( decision of CARDINAL DATE ) , the tax court before which proceedings had been pending for DATE held a hearing after the applicant had complained to ORG of their excessive length . He consequently withdrew his complaint and was refunded the legal costs incurred in lodging it in so far as it related to the length of the proceedings . However , in so far as he had challenged statutory provisions , he was required to await the outcome of the proceedings in the tax court . Similar reasoning was adopted in case no . CARDINAL BvR CARDINAL/CARDINAL ( decision of DATE ) , concerning proceedings in the social courts .

In a decision of DATE ( no . CARDINAL PBvU CARDINAL ) , adopted by a majority of CARDINAL votes to CARDINAL , ORG , sitting as a full court , called upon the legislature to create a remedy in respect of infringements of the right to be heard by a court . The final part of the decision contains the following passage :

“ To redress certain deficiencies in the system of judicial protection , the courts have allowed the creation of special remedies partly outside the scope of written law . These remedies do not satisfy the requirements of constitutional law regarding the transparency of legal remedies [ PERSON ] . Remedies must be provided for in the written legal order and the conditions for their use must be visible to citizens . ”

In ORG view , the principle of the transparency of legal remedies resulted from the principle of legal certainty ( PERSON ) , which was an integral part of the rule of law . ORG had to be in a position to assess whether a remedy could be used and , if so , under what conditions .

“ The current system of special remedies in respect of violations of the right to be heard by a court does not comply with this principle of transparency . Doubts thus exist as to whether a special remedy has to be used first or whether a complaint should be lodged immediately with ORG . To avoid forfeiting their rights of appeal , litigants often avail themselves of both remedies at the same time . Such constraints provide a clear illustration of the shortcomings of special remedies in terms of the rule of law . At the same time they create an unnecessary burden for citizens and the courts .

The shortcomings referred to above preclude ORG from making the admissibility of a constitutional complaint contingent on the use of such special remedies . They are not among the remedies that must be used for the purposes of the first sentence of section CARDINAL(CARDINAL ) of ORG . In so far as such an approach has hitherto been adopted by ORG , it can no longer be pursued . ... ”

In a decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , ORG nevertheless declined to examine a constitutional complaint by a prisoner concerning the length of proceedings before a court responsible for the execution of sentences , holding that the complainant should first have lodged a complaint alleging inaction . After observing that some courts accepted such a remedy only where the lack of activity could be deemed to amount to a final rejection of the initial application , ORG pointed out that other courts applied less stringent criteria . It concluded :

“ This remedy was not bound to fail in advance . The complainant could have been expected to attempt it . He should first have sought judicial protection from the appropriate courts , even if the admissibility of a remedy was the subject of dispute in the case - law and among legal writers and there was consequently some doubt as to whether the court in question would accept it or not . ”

In case no . CARDINAL BvR CARDINAL/CARDINAL ( decision of DATE ) , the division of ORG responsible for supervising the execution of sentences had remained inactive despite several requests to expedite the proceedings and despite a decision in which ORG had held that their length was unlawful . ORG declared the constitutional complaint admissible in so far as it concerned the court ’s inaction but dismissed it in so far as it concerned the impossibility for ORG to give a ruling in place of ORG in order to put an end to the lack of activity . ORG persistent inaction did not show that the legislative framework failed to satisfy the requirements of LAW . Besides the possibility of a finding by the appellate court that such inaction was unlawful , there were other remedies for restoring the proper administration of justice , namely an appeal to a higher authority and an action for damages against the ORG .

The special remedy of a complaint alleging inaction ( ausserordentliche Untätigkeitsbeschwerde ) has been recognised according to varying criteria by a number of courts of appeal . While some have accepted it where there have been significant delays , others have limited its application to cases in which the court ’s inactivity can not be objectively justified and amounts to a denial of justice . Decisions falling into the latter category include those delivered by ORG on CARDINAL DATE ( no . CARDINAL W CARDINAL/CARDINAL , in which the remedy was found to be admissible only if the court ’s decision amounted to a denial of justice ) and CARDINAL DATE ( no . CARDINAL W CARDINAL/CARDINAL , in which the remedy was found to be admissible in respect of an unjustified delay by the lower court in dealing with an application for legal aid ) . ORG , for its part , has to date left open the question whether , in exceptional cases and with due regard to constitutional law , a special complaint may be allowed in respect of arbitrary inaction that could be construed as a denial of justice on the part of a lower court ( see the decisions of CARDINAL DATE ( no . AnwZ ( B ) CARDINAL ) and DATE ( no . PERSON CARDINAL/CARDINAL ) ) .

The Government have cited several decisions in which a court of appeal has allowed a special complaint alleging inaction and has called on the lower court to continue its examination of the case ( decisions of ORG ( DATE , no . CARDINAL WF CARDINAL/CARDINAL ) , ORG ( CARDINAL DATE , no . CARDINAL UF CARDINAL/CARDINAL ) , ORG ( DATE , no . CARDINAL W CARDINAL/CARDINAL ) and ORG ( DATE , no . CARDINAL WF CARDINAL/CARDINAL ) ) or has referred the case back to it ( ORG decision of DATE ( no . CARDINAL W CARDINAL/CARDINAL ) ) . More recent decisions have clarified the consequences of a complaint alleging inaction . For example , in CARDINAL decisions of DATE ( nos . CARDINAL ORG CARDINAL/CARDINAL and CARDINAL/CARDINAL ) ORG allowed such a remedy not only where there had been unjustifiable inactivity amounting to a denial of justice , but also where the delay complained of was likely to be prejudicial to a parent claiming parental responsibility , or to the child ’s well - being . It observed that it could not take the place of the family court , even if this was the most efficient manner of proceeding . Nor could it impose a procedural timetable on the lower court , since unforeseen circumstances might arise . The action it could take was limited to calling on the court to expedite the proceedings as much as possible . However , to give more substance to its order , it set the court deadlines for dealing with an objection to an expert , for giving the expert DATE in which to produce his report or , otherwise , appointing a new one , for interviewing the parents and child and for arranging a hearing . ORG delivered a similar decision on the same subject on DATE ( no . CARDINAL WF CARDINAL/CARDINAL ) . In other cases courts of appeal have given decisions in place of the lower courts on account of the delays observed and in so far as the case was ready for decision ( decisions of ORG ( DATE , no . CARDINAL W CARDINAL/CARDINAL ) , ORG ( DATE , no . CARDINAL WF CARDINAL ) and ORG ( DATE , no . CARDINAL Ta CARDINAL/CARDINAL ) ) .

The Government have not produced any decisions of ORG on this subject .

In a decision of CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL , unreported – see PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ) , ORG refused to examine a constitutional complaint on the following grounds , inter alia :

“ ... The constitutional complaint is inadmissible in so far as the complainant is asking ORG to award him damages for the excessive length of the proceedings in issue . If a complainant seeks compensation for pecuniary or non - pecuniary damage sustained by him as a result of an infringement of his fundamental rights , he must first exhaust the remedies available in the civil courts . It is for those courts to assess , where appropriate , the extent to which the provisions on the ORG ’s liability ( LAW and those deriving from LAW as incorporated in domestic law form a basis for awarding compensation for the excessive length of proceedings ... ”

In a decision of CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL , unreported ) , ORG confirmed that position :

“ In so far as the constitutional complaint concerns ORG decision of DATE and that court ’s alleged inaction , it has become inadmissible because ORG has in the meantime given judgment .

The complainant is not entitled to seek an ex post facto finding of a violation of LAW on account of the excessive length of the proceedings . There is no statutory basis in constitutional law for applying to have a court decision set aside because of the excessive length of the proceedings , or for seeking damages on that account . Setting aside ORG judgment of DATE would not remedy the violation of LAW resulting from the excessive length of the proceedings but would simply delay them further ... ”

The Government cited a judgment delivered by the GPE ORG on DATE ( no . CARDINAL O CARDINAL/CARDINAL ) . The case concerned an action for damages in which the claimant alleged that ORG had remained inactive for DATE . He had lodged a special complaint with ORG alleging inaction on that account . Shortly afterwards , ORG made an interlocutory order in the proceedings , with the result that the complainant informed ORG that his complaint alleging inaction had lost its purpose and that his claim now related solely to the reimbursement of his legal fees . The president of a division of ORG replied that as no official proceedings had been instituted before it – the complaint alleging inaction being a special remedy – it was unnecessary to rule on the question of costs . ORG granted the claimant approximately ORG CARDINAL,CARDINAL in damages for the legal fees incurred within the limits of the applicable rates . The court further noted that the claimant had satisfied the conditions in LAW by having appealed to a higher authority before bringing his action before it .

ORG , however , awarded compensation in a decision of DATE ( no . CARDINAL O CARDINAL/CARDINAL ) for damage sustained as a result of the length of proceedings in ORG after ORG had found their length to be unlawful ( decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL – see paragraph CARDINAL above ) . It pointed out that State liability was not precluded by the “ judicial privilege ” enshrined in the first sentence of LAW , since that rule did not apply in the event of inaction on the court ’s part . The decision has not become final ( see the ORG ’s decision in PERSON , cited above ) .


Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The first applicant , Mr PERSON , and the second applicant , PERSON PERSON , are NORP citizens born in DATE and DATE and living in GPE . The first applicant is a police inspector , who at the material time was Chairman of ORG ( Norsk Politiforbund ) . The second applicant is a police constable and was at the relevant time Chairman of ORG ( PERSON ) , a branch of the former association . At the material time they were both working in the GPE police force .

In DATE Mr PERSON , then a law student , and Mr ORG , then an associate professor of sociology at ORG , carried out an investigation into the phenomenon of violence in GPE , a city of CARDINAL inhabitants . They gathered material from the local hospital relating to all patients subjected to violence during DATE . Later , they included material from other sources . In DATE Mr Nordhus and PERSON published a summary of their previous reports in a book entitled GPE og dens ofre . En empirisk undersøkelse ( “ Violence and its ORG . An Empirical Study ” ) . The book extended to CARDINAL pages and included a DATE chapter on police brutality , which it defined as the unlawful use of physical force during the performance of police duties . The authors found , inter alia , that CARDINAL persons had been exposed to police brutality during the aforementioned period , CARDINAL of whom had been medically examined , and that the police in GPE were responsible for CARDINAL incidents a year of excessive and illegal use of force .

The book gave rise to a heated public debate . This involved in part researchers concerning the methods used and the scientific basis for the conclusions drawn , and in part members of the police and the prosecution .

NORP In this connection ORG appointed a ORG ( utvalg ) of Inquiry consisting of Mr PERSON , professor of criminal and procedural law , and Mr PERSON , advocate before ORG . Their mandate was to verify whether the research of PERSON Nordhus and PERSON provided a basis for making any general observations as to the nature and extent of police brutality in GPE .

Assisted by a statistics expert and an expert on the use of interviews , the ORG interviewed QUANTITY persons , including QUANTITY police officers , CARDINAL public prosecutors , CARDINAL doctors who had taken blood samples at GPE police station , CARDINAL social workers who dealt especially with young criminals in GPE , CARDINAL defence lawyers with extensive experience of criminal cases in GPE , CARDINAL witnesses of police brutality and CARDINAL alleged victims of such misconduct . In a report published in DATE under the title Politivoldrapporten ( “ Report on Police Brutality ” ) PERSON and PERSON PERSON concluded :

“ Since ORG has been unable to reach a conclusion regarding individual accounts of situations , but has considered all the material as a whole ( see remarks on p. CARDINAL with reference to the recommendation of ORG ) , it will not , on the basis of the descriptions of the situations alone , be able to give any exact figure as to the number of incidents of police violence in GPE . However , on the basis of all the information concerning police violence in GPE received from various sources by ORG , it believes that the nature and the extent of police violence are far more serious than seems to be generally believed . On the strength of the evidence as a whole , the ORG assumes that the real extent hardly differs from the CARDINAL researchers’ estimates . However , the essential point must be that even the most cautious estimates that can be made on this basis indicate that the extent is alarming . ”

The conclusions in the DATE report and its premises were called into question by ORG , amongst others . The association considered bringing defamation proceedings against Mr Bratholm , PERSON , Mr GPE and Mr PERSON but decided in DATE to refrain from such action .

Newspapers in GPE , in particular , took a keen interest in the debate following publication of the DATE report . Prior to that , in DATE , the newspaper PERSON had stated that Mr PERSON had lied in connection with the collecting of material for his research . Mr Nordhus instituted defamation proceedings against the newspaper but in DATE ORG ( byrett ) dismissed the action on the ground that the accusation had been justified .

PERSON continued his work on police brutality , eventually as an independent researcher . In DATE he published a book entitled PERSON ( “ Police Brutality ” ) , with the subtitle Omfang – årsak – forebyggelse . En studie i desinformasjon ( “ Extent – Causes – Prevention . A Study in Misinformation ” ) . He explained his use of the term “ misinformation ” as meaning the deliberate or negligent dissemination of incorrect information . It related to the “ false ” – or “ misunderstood ” – loyalty , leading police officers witnessing the excessive and unlawful use of force to keep quiet or cover the perpetrator by giving false testimony . Taking the DATE report as its point of departure the book provided additional facts , analyses and conclusions . It also contained strong criticism by PERSON of ORG judgment in the above - mentioned case brought by Mr GPE against PERSON .

Following the publication of PERSON book Politivold the second applicant , as Chairman of ORG , was interviewed by the newspaper ORG . The interview was published in an article on CARDINAL DATE entitled ( all quotations below are translations from NORP ) “ PERSON out to get the police – An entire service has been denounced by anonymous persons ” and read :

“ ‘ The mood of officers in the police force has been swinging between despair and anger . An entire service has been denounced by anonymous persons . Many of the officers dread making an appearance in town because there is always someone to believe that there must be something in these allegations.’

This is what the Chairman of ORG , PERSON , told ORG . He describes Professor PERSON ’s recent report on police brutality in the GPE police force as ‘ pure misinformation intended to harm the police’ .

‘ Until the contrary has been proved , I would characterise this as a deliberate lie . The allegations come from anonymous sources and are clearly defamatory of the ORG

‘ Are you questioning PERSON motives for exposing police brutality?’

‘ There must be other ulterior motives . It appears as if the purpose has been to undermine confidence in the police.’

‘ Would you suggest that the information be investigated internally?’

‘ If there is any truth in it , we will do what we can to remedy the situation . Such a situation is not to our credit , and we are not interested in having such people in the force.’

‘ So you do not exclude the possibility that misconduct has occurred?’

‘ I discount the possibility that any officers have committed such outrages as described . But I can not exclude that some of them have in certain instances used force and gone too far.’ ”

On DATE the first applicant , then Chairman of ORG , was quoted in an article published by the newspaper PERSON under the headline “ Unworthy of a law professor ” . The article read :

“ ‘ It is beneath the dignity of a law professor to present something like this . The allegations are completely frivolous since they are based on anonymous sources . They have nothing to do with reality.’

This was stated by PERSON , Chairman of ORG , in connection with the allegations made by Professor PERSON in his book on police brutality .

‘ I have spent my whole working life in the GPE police force , and can safely say that the allegations concerning police brutality bear no relation to reality . They are stories that would have been better suited to a DATE with space to fill than a socalled serious study’ , says PERSON .

Full parity

‘ I am puzzled by the motives behind such allegations,’ continues the Chairman of ORG . ‘ At any rate , it can not be in the interests of the rule of law and the public good to create such problems for an entire service . I would claim that the quality of the human resources within the police is fully on a par with that found among professors . We would not be able to base a charge against anyone on such flimsy grounds as Professor PERSON does . Then , at any rate , there would not be any rule of law in this country.’

Would not be tolerated

‘ But you are not denying that police brutality does occur?’

‘ Of course not , but that is a different question . Here it is a question of systematic use of violence and pure theft . Such conduct would not be tolerated within a police force.’

PERSON out that , although he has not studied the book closely , he considers that one can not leave what has emerged so far unchallenged . The problem is that it is difficult to contest the allegations because it is not an individual , but an entire service , which feels it has been libelled . He does , however , agree with Chief of Police , Mr Oscar Hordnes , who told PERSON DATE that there must be good reason for ORG ] to examine the matter more closely . ORG will also consider seeking a legal opinion on the book . ”

In DATE Mr Bratholm and Mr Nordhus published a book – ORG av politivold og andre overgrep i GPE - politiet ( “ Documentation of police brutality and other misconduct in the GPE police force ” ) in which PERSON stated :

“ The harassment and persecution to which Mr DATE and in part Mr GPE – have been subjected in GPE are reminiscent of the fate of dissidents in east NORP countries . I doubt that there is anyone among us whose situation is closer to that of these dissidents than Mr GPE . It is almost a wonder that he has had the courage and strength to continue his struggle to bring the truth to light .

It is impossible to say how many officers in the GPE police force are involved in the unlawful practice described here ; hopefully only a small minority . It is , however , difficult to believe that a great many in the force could be unaware of the conduct of certain colleagues . But their silence is ensured by the pressing demand for ‘ PERSON . This has made it possible for the criminal sub - culture in the GPE police force – whose activities encompass various kinds of offences – to survive and most likely to flourish .

There is reason to believe that many of the actions against Mr Nordhus and PERSON are headed by somebody who is centrally placed DATE that there is somebody behind the scenes in the GPE police force who is pulling the strings , plotting strategies and laying plans together with a few highly trusted persons . According to information that has come to light , it may now be possible to identify the key people responsible for some of the misconduct . ”

In DATE PERSON published a further book entitled Politiovergrep og personforfølgelse . CARDINAL forklaringer om politivold og andre overgrep i Bergenspolitiet ( “ Police misconduct and individual harassment . CARDINAL statements concerning police brutality and other forms of misconduct in the GPE police force ” ) , which to some extent was an update of PERSON and Mr PERSON ’s book of DATE . In the introduction PERSON stated :

“ Although abuse of power by the police does occur , and in some places far more frequently than in others , this does not mean that the majority of NORP police officers are guilty of such abuse . All the investigations indicate that a small minority of police officers have committed most of the incidents of abuse and are able to continue because the demands for ‘ PERSON are so strong within the police . ”

In DATE the NORP law journal Lov og Rett published a special volume devoted to the issue of police violence . It included a number of articles by academics , amongst others by PERSON , criticising an investigation ordered by ORG ( see paragraph CARDINAL below ) .

PERSON also published a number of other articles on the subject of police brutality .

After receiving from PERSON an unexpurgated version of the book published in DATE mentioning the informers’ names ( which until then had been known to the researchers only ) , the ORG ordered an investigation headed by ad hoc prosecutor Mr PERSON and police officers from another district .

In DATE the result of ORG investigation was made public : CARDINAL cases of alleged police brutality in GPE had been investigated . CARDINAL persons , including CARDINAL police officers , had been interviewed . Charges were brought against one police officer , who was subsequently acquitted . The overall conclusion reached in the investigation was essentially that the various allegations of police brutality were unfounded .

At the close of the investigation , CARDINAL of the interviewees were charged with having made false accusations against the police . QUANTITY of these persons were later convicted in jury trials before ORG ( lagmannsrett ) , which took place during the period from DATE and were referred to as the “ boomerang cases ” .

On DATE a new statement by the first applicant was printed in NORP in GPE in an article carrying the following headlines :

“ Dramatic turn in the debate on brutality

ORG contacted

ORG is preparing legal action ”

The article read :

“ Not only has Professor PERSON now issued a demand that a government committee of inquiry should be set up to review what was long ago concluded by ORG , but ORG has now been reported to ORG for violating human rights ! A delegation from the international secretariat in GPE has already been in GPE . Their report is expected to be ready DATE .

‘ I have to admit that I was quite surprised when I was told about this recently . It seems as if gentlemen like Mr GPE , Mr PERSON and PERSON now realise that when one move does not work they try another’ , commented PERSON , Chairman of ORG .

In [ his ] view , the matter is about to get out of hand . He describes the reporting of the matter to ORG as an insult and feels that with the recent , sharp attacks by Professor PERSON and others , the limits of what can be called impartial research have long since been exceeded . ‘ In my view , one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the GPE , PERSON said to ORG .

Just before the weekend Mr PERSON was in GPE , where he had talks with the newly appointed board of ORG ... PERSON says it was natural that the recent sharp attacks by Mr DATE , Mr PERSON and PERSON were one of the topics discussed .

‘ I intend to contact our lawyer ... DATE . He has DATE sent a letter to PERSON in which we demand an apology for the statements he has made . I think you can count on our instituting defamation proceedings in this matter . We can not put up with a situation where the same accusations continue to be made against the GPE police despite the fact that the force has been cleared after CARDINAL of the greatest investigations of our time.’

Extended accusations

‘ But PERSON has no confidence in [ prosecutor ] ORG competence and desire to have the whole matter investigated?’

‘ The fact that Professor PERSON now calls into question the work carried out by PERSON and instituted by the Attorney - General [ ORG ] is in itself serious and remarkable . Now the charges have been extended to include superior police authorities as well.’

According to ORG sources , PERSON will very soon contact the Prosecutor - General to hear what the latter intends to do about PERSON extended insinuations .

As regards the fact that ORG is being brought into [ the matter ] , Mr PERSON ... affirms that this is as a result of the organisation ’s wish to gain full insight into the situation in the GPE police force . ”

NORP In DATE the first applicant gave a speech as Chairman of ORG at its DATE general assembly , from which PERSON quoted in an article dated DATE carrying the headline “ PERSON accused of defamation ” . The article read , inter alia , as follows :

“ ... ORG is serious about its threat to bring defamation proceedings against Professor PERSON . According to PERSON , Chairman of the ORG , a summons against PERSON will be issued within DATE requesting that CARDINAL specific written statements he has made in connection with the police brutality case in GPE be declared null and void .

Refused

‘ Professor PERSON has had an opportunity to apologise for the CARDINAL specific points which we find to be defamatory of the police as a professional group , but he has refused . Therefore we are instituting proceedings . No compensation will be claimed ; we are merely seeking to have the statements declared null and void.’

Critical eyes

PERSON also mentioned this matter in his opening speech to the national assembly and said , among other things , that society ’s power structure had to tolerate critical eyes . However , this presupposed a responsible and reliable attitude on the part of the critics . He strongly denounced unobjective debates on police brutality fostered by powerful forces of high social status .

Dilettantes

‘ PERSON status as a professor has lent credibility to the allegations of police brutality , and this has undermined the respect for and confidence in the police . ORG will not accept the appointment of a new commission to investigate allegations of police brutality ; nor will it accept private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public’ , said PERSON .

Verbal attacks

Mr PERSON described verbal attacks on the police as an attempt to undermine the dignity and authority of the police . ”

In a special edition of the law journal LOC , published in DATE , the police and the prosecution authorities presented their views on the investigation ordered by ORG and the ensuing investigation into the suspected false statements given by Mr ORG informers .

In DATE ORG and its GPE branch brought defamation proceedings against PERSON , seeking to have his above - cited statements in “ Documentation of police brutality and other misconduct in the GPE police force ” declared null and void ( see paragraph CARDINAL above ) .

In DATE PERSON , for his part , instituted defamation proceedings against the applicants , requesting that a number of their statements be declared null and void .

NORP In DATE , in view of ORG Rights’ PERSON GPE v. GPE judgment of DATE ( Series A no . CARDINAL ) , the associations withdrew their defamation action against Mr Bratholm . The latter refused to withdraw his case against the applicants .

The Oslo City Court heard the case against the applicants from CARDINAL DATE to CARDINAL DATE , during which evidence was taken from CARDINAL witnesses and extensive documentary evidence was submitted .

In its judgment of DATE ORG observed , inter alia , that it was established that unlawful use of violence had occurred in GPE and that , although it had emanated from very few police officers , the extent of the violence was problematic . PERSON had not assailed his GPE integrity and had not expressed himself in a manner that could justify the ORG attack on him . It found the following statements defamatory under LAW and declared them null and void ( død og maktesløs , mortifisert ) under LAW ( the numbering below follows that appearing in the national courts’ judgments ) :

( Statements by the second applicant published by ORG on CARDINAL DATE )

CARDINAL NORP “ He describes Professor PERSON ’s recent report on police brutality in the GPE police force as ‘ pure misinformation intended to harm the police’ . ”

CARDINAL NORP “ Until the contrary has been proved I would characterise this as a deliberate lie . ”

NORP “ There must be other ulterior motives . It appears as if the purpose has been to undermine confidence in the police . ”

( Statements by the first applicant published by ORG and DATE respectively )

CARDINAL “ In my view , CARDINAL is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives . ”

CARDINAL NORP “ ORG will not accept ... private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public . ”

On the other hand , ORG rejected PERSON claims with respect to the following statements by the first applicant published by PERSON on DATE and DATE :

CARDINAL NORP “ I am puzzled by the motives behind such allegations . At any rate , it can not be in the interests of the rule of law and the public good to create such problems for an entire service . ”

CARDINAL NORP “ Mr PERSON described verbal attacks on the police as an attempt to undermine the dignity and authority of the police . ”

ORG ordered the first applicant to pay MONEY ( ORG ) for non - pecuniary damage to PERSON but dismissed the latter ’s claim for non - pecuniary damage against the second applicant on the ground that it had been submitted out of time . ORG further ordered that the applicants pay PERSON respectively ORG CARDINAL,CARDINAL.CARDINAL and ORG CARDINAL,CARDINAL.CARDINAL for legal costs .

ORG judgment included the following reasons :

“ Statement CARDINAL ... is an unequivocal allegation that PERSON book contains false allegations of police violence within the GPE police . The expression ‘ misinformation’ may be understood as being a neutral assertion that PERSON provides false information , or to mean that he should be aware that he [ does so ] , or that he [ does it ] deliberately . The ORG emphasises that the phrase ‘ pure misinformation intended to harm the police’ must be read in connection with the rest of the text – particularly statement CARDINAL and the last paragraph of the interview – and has come to the conclusion that an ordinary reader would understand the statement as follows :

‘ With the intent of harming the police , PERSON is deliberately imparting false information on police brutality.’

The ORG has no doubt that this is an assertion that constitutes a defamatory allegation . It is both offensive to PERSON sense of honour and liable to harm his reputation . The allegation is not a subjective characterisation , but an assertion about a matter of fact that can be proved by means of evidence . The accusation can thus be declared null and void .

The ORG would add that , when read in context , the statement can not be construed as an accusation that PERSON himself is making false allegations of police brutality . However , even if the statement must be understood to be an allegation against persons other than PERSON ( of making false accusations of police brutality ) , this does not alter its character as an allegation aimed at PERSON . When read in its entirety , the text clearly indicates that it is PERSON book which PERSON is referring to .

When statement [ CARDINAL ] is read in the context of the rest of the text , which essentially deals with PERSON book , an ordinary reader would understand it as follows :

‘ PERSON is deliberately passing on assertions about police brutality which he knows are lies.’

Whether statement DATE can be interpreted in such a way that it also targets the informers is of no significance here either . Nor does the ORG doubt that this statement constitutes a defamatory allegation directed at PERSON which may be declared null and void because its truth can be tested by evidence .

[ Statement CARDINAL.CARDINAL ] must be understood as a clear assertion that PERSON purpose ( in writing the book PERSON ) has been to undermine confidence in the police . When read in the context of the rest of the text , especially statements CARDINAL.CARDINAL and CARDINAL , it must be understood as an assertion that PERSON for this purpose is passing on allegations of police brutality which he knows to be untrue . The statement also includes an implicit denigration of PERSON purpose as questionable and unworthy . ‘ Other motives’ answers the question whether PERSON motives can be doubted , i.e. as opposed to honourable motives such as , for instance , to promote the rule of law .

The ORG has no doubt that the assertion is an allegation which has both offended PERSON sense of honour and is liable to harm his reputation . The part of the assertion alleging that PERSON intention is to undermine the police can be proved to be true or false . That PERSON intention , with the statement worded as it is , must be understood by the reader as questionable or reprehensible is a subjective value judgment that can hardly be proved true or false . However , this does not in principle mean that statement CARDINAL may not be declared null and void .

[ Statement CARDINAL ] is not unequivocal as to whom it is directed against . It can be understood as being directed against PERSON ( probably also against others ) , when seen in the light of the CARDINAL preceding passages stating that PERSON ( together with PERSON and Mr Nordhus ) is trying a new move and that PERSON ( amongst others ) is transgressing the limits of neutral research . When read in its context , the statement may also be understood to imply that it is not at all directed against PERSON , but against ORG . Such an interpretation must be based on the fact that the newspaper interviewed PERSON just because ORG had become involved in the matter . As a third possibility , the ORG mentions that the statement DATE especially when read in the context of the caption in the newspaper DATE may be understood by an ordinary reader to imply that it is first of all directed at Mr PERSON and Mr GPE , but also at PERSON .

The ORG has reached the conclusion that when read in context statement [ CARDINAL ] must be interpreted in any event as an assertion that PERSON , among others , has questionable motives for his involvement , and that PERSON is engaged in and/or contributes to what PERSON describes as skulduggery and private investigation , not impartial research .

The statement in part includes value judgments ( ‘ ORG , ‘ private investigation’ ) , which are not liable to be declared null and void . However , the statement also includes an assertion on matters of fact , i.e. that there are dishonest motives and that PERSON is not neutral .

The statement must obviously be understood to be an assertion that it is Mr Bratholm whose motives are dishonest . This follows from the first and second paragraphs preceding the statement , where PERSON first mentions that PERSON ( together with Mr GPE and Mr PERSON ) is trying a new move , and then claims that PERSON , among others , has exceeded the limits of impartial research .

The ORG has no doubt that this assertion constitutes a defamatory allegation against PERSON . It is both offensive to his sense of honour and liable to harm his reputation . The truth of the allegation can be tested by evidence and it may therefore be declared null and void .

Statement CARDINAL contains an assertion that allegations of police brutality are being fabricated and then made public . When read in connection with the rest of the text , this must be interpreted by an ordinary reader as an assertion that Mr Bratholm publicises false allegations of police brutality . This assertion can be proved to be true or false , and is in principle liable to be declared null and void .

The statement does not include only the said assertion . When the assertion is also understood to mean that PERSON is publicising allegations that he should have realised are false it follows that it is also offensive to PERSON sense of honour and liable to harm his reputation . The assertion implies that he , as an expert , is heedlessly publicising false allegations of police brutality . However , when read in context the statement can not be understood solely in this way .

The statement must be interpreted as an assertion that PERSON is taking part in a private investigation for the purpose of fabricating allegations of police brutality .

If the assertion is to be interpreted as also being directed at persons other than Mr Bratholm , this does not preclude its being directed at him . Accordingly , statement CARDINAL must also be interpreted as a defamatory allegation against PERSON , the truth of which can be tested by evidence . ”

The applicants appealed against ORG judgment to ORG ( PERSON ) , challenging the former court ’s interpretation of their statements . Without any support in their wording or the context , it had interpreted the statements as calling into question PERSON honesty and motives . In no event could the statements be regarded as unlawful , as they had been expressed in response to his damaging value judgments of the profession . The applicants invoked , inter alia , LAW pursuant to which a court could refrain from imposing a penalty if the injured party had provoked the defendant or retaliated in a reprehensible manner . A crucial factor was that PERSON attacks on the associations which the applicants represented constituted such provocation and retaliation .

In his cross - appeal PERSON challenged ORG findings with respect to statements CARDINAL and CARDINAL . Moreover , he emphasised , inter alia , that he had not questioned the honesty of the applicants or any other officials . His criticism had been directed against a system and enjoyed special protection under LAW .

On DATE ORG ( kjæremålsutvalget ) of ORG granted leave to appeal on points of law .

On DATE ORG rejected both appeals , thereby upholding ORG judgment , and ordered each of the applicants to pay ORG CARDINAL in additional costs to PERSON .

On behalf of the court , PERSON Justice PERSON stated , inter alia :

“ In the present case the interest in freedom of expression carries particular weight . The statements sought to be declared null and void were made in a public debate concerning police brutality . Police brutality – and by this I mean the use of illegal physical force by the police against individuals – is a matter of serious public concern . It is of central importance for democracy that a debate concerning such matters may take place as far as possible without a risk of sanctions being imposed on those who participate . It is of particular importance to allow a wide leeway for criticism in matters of public concern ( see LAW ) . However , those who act in defence against the criticism , for instance the representatives of the GPE police , should of course also enjoy this freedom of expression .

However , freedom of expression does not go as far as [ allowing ] every statement in a debate , even if the debate relates to matters of public concern . Freedom of expression must be weighed against the rights of the injured party . The limit between statements which may be permissible and statements which may be declared null and void must in principle be set at statements which relate to the other person ’s personal honesty or motives ...

Nor do accusations of lies , improper motives , dishonesty ... serve to promote freedom of expression but , perhaps , rather to suppress or prevent a debate which should have been allowed to take place .

[ The applicants’ ] argument that the [ impugned ] statements can not be declared null and void because they include subjective value judgments which are not susceptible of proof , is in my view untenable . The statements include , among other things , accusations of deliberate lies , unworthy motives and intent to damage the police . The truth of this type of statement can in principle be proved . The fact that [ the applicants ] have made no attempt to present such proof is another matter .

In the assessment of whether the [ statements ] are to be considered unlawful [ rettsstridig ] the aggrieved party ’s own conduct may also be relevant . A person who uses strong language may have to tolerate more than others . I will revert to Mr ORG conduct . Suffice it to say , in this context , that I can not see that his strong involvement [ in the debate ] can be decisive with respect to those statements which clearly question whether he is lying or has acceptable motives .

[ The applicants ] have submitted that , regardless of whether the statements are unlawful , the request for a null and void order must be refused , in accordance with an application by analogy of LAW . To this I would ... say that [ this ] provision scarcely has any independent significance any longer – at least as regards provocation . In the case - law , the injured party ’s own conduct has become more central in the determination of [ whether a statement should be considered unlawful ] and in violation of LAW . I fail to see that there can be any room for exemption from penalty if the statement is unlawful . This approach would be the same if LAW ... had also been applicable to nullification . For this reason alone , there are no grounds for application by analogy , as pleaded by [ the applicants ] .

I should think that the reasoning I have ... presented is also correct in respect of retaliation . In any event there [ was in the present case ] no retaliation such as that required ...

I agree with ORG that [ the statements in question ] fall under LAW . Read in their context , they are directed against PERSON . In statement PERSON he is accused of deliberate lies . An accusation of falsehood is also implied in statement CARDINAL by the word ‘ PERSON . [ Statement ] CARDINAL implies unworthy motives and suggests malicious intent [ underlying PERSON attacks against the police ] . This is also implied in statement CARDINAL . The defamatory nature of the [ second applicant ’s ] statements becomes clearer and is thus reinforced when the statements are read together .

The interest in freedom of expression can not make these statements lawful . I refer to what I have said about statements which are directed against personal honesty and integrity .

It has been submitted that PERSON own situation must be of central importance in the evaluation of the issue of lawfulness . He has , it is being alleged , made strong and derogatory statements against his opponents in the debate and must accept that an embarrassing light is put on him as well .

I agree that PERSON voices harsh criticism in his book ‘ Police Brutality’ . A lot of this criticism is against a system , but a lot of it is also directed against persons .

PERSON uses a number of derogatory expressions . ‘ Misinformation’ has been singled out as CARDINAL of them . I can not see , for instance , that the use of that expression carries any significant weight when the lawfulness of the impugned statements is being assessed . PERSON point in using this expression has been , inter alia , to expose a deliberate or negligent denial of the existence of police brutality . Such denial is a prerequisite for the occurrence of police brutality on an appreciable scale .

The word despotism has also been mentioned . In the manner it is used in the preface to PERSON book it is not linked to the GPE police force ... The fact that the use of words such as ‘ despotism’ probably contributed to raising the temperature and the general noise level of the debate may be relevant to the assessment of the lawfulness [ of the impugned statements ] . Having regard to the entire context , however , I can not see that PERSON choice of words or manner of presentation of his views either in ‘ Police Brutality’ or in connection with the commercialisation of the book can justify calling into question his integrity as was done in the statements under consideration .

It is noted that the appellants have forcefully submitted that their statements were made in their capacity as representatives of the police and that , as such , they must enjoy a particular protection against their statements being declared null and void . I agree that it was natural for PERSON and PERSON as representatives to look after the interests of the police officers in the debate . As I have already mentioned , their freedom of expression should be protected to the same extent as the freedom of those who direct the attention towards possible questionable circumstances within the police force . But , as already pointed out , there is a limit also in respect of them . That limit has been overstepped in this case .

Accordingly , I conclude along with ORG that statements CARDINAL , CARDINAL must be declared null and void .

I will now turn to PERSON statements ...

[ Statement CARDINAL ] ... directly assails the honesty of PERSON motives . That this is what is being questioned is reinforced when the statement is read in the context of the whole article ...

I therefore agree with ORG that statement CARDINAL must be declared null and void ...

Statement CARDINAL is tantamount to an assertion that allegations of police brutality are being fabricated and then made public . In this , there clearly lies a statement to the effect that the published material is being tampered with . The statement appears in close connection with PERSON and must at any rate be perceived as applying also to him ...

... I therefore conclude that statement CARDINAL but not statement CARDINAL must be declared null and void ... ”

In a concurring opinion Mr Justice PERSON stated , inter alia :

“ I have reached the same conclusion and I agree on the essential points of the reasoning . However , for my part I have reached this conclusion with considerable doubts as to whether the appellants’ statements were unlawful , having regard to the circumstances in which they were made . The basis for my doubts is as follows :

[ Mr Justice PERSON ] pointed out that in a public debate on ‘ matters of public concern’ ... the threshold for what the participants may state without being found liable for defamation should be very high . Even if this is accepted , I agree that it should not legitimise attacks directed against the opponent ’s personal integrity , or which devalue or throw suspicion on his motives for participating in the debate .

For my part , I find it hard to see how the statements which ORG ... declared null and void could be said to have been particularly directed against Mr Bratholm as a private individual . But I shall leave that aside , since I consider that in a heated public debate attacking another person ’s integrity and motives instead of what the person has stated must be deemed unlawful as such .

What in particular causes a problem for me is that – as I see it – it was PERSON himself who had called into question the integrity of the police , in particular that of ORG , when the debate on police brutality resumed in DATE . In LAW of [ the book ] he states the following about the concept ‘ misinformation’ :

‘ “ Misinformation ” can be defined in various ways . CARDINAL possible definition is untrue information , irrespective of whether the information is provided in good faith . It may , for example , be discovered subsequently that the research was mistaken on some point .

There is little reason to place such a wide construction on the concept of misinformation . It is more practical to understand it as meaning deliberate or negligent dissemination of incorrect information . Misinformation in this sense is a problem that is easier to deal with than when our understanding is broadened only gradually .

If I were to base my conclusion on scattered information and impressions , it would be that the misinformation has been rather successful . The police , their organisations and supporters appear to have convinced fairly large parts of public opinion DATE which is hardly surprising . It is natural to call to mind how successful misinformation concerning the old GPE police force has been for DATE . In spite of the extremely bad conditions there – and the fact that sound documentation of these conditions was provided by at least some of the GPE newspapers from time to time , it was the misinformation that prevailed . The many members of the police that knew of the brutality did nothing to bring the circumstances to light.’

I can not read this in any other way than that PERSON here indeed himself accuses his opponents in the debate – ‘ the police , its organisations and LAW – of lack of integrity , of knowingly hiding factual circumstances and of acting on the basis of inappropriate motives .

It is in my view on this basis that the appellants’ statements must be evaluated DATE and in particular those which were made after the publication of ‘ Police Brutality’ in DATE . The appellants’ submission that they , who naturally must have felt offended on behalf of the police , were entitled to reply in the same manner is not as such ill - founded .

In this connection it is in my view also of importance that the appellants expressed themselves on behalf of the police organisations in GPE and at the national level , respectively . They acted as elected representatives and spokesmen of the members . Very likely , and rightly so , they considered it an organisational duty to react to the attacks which were directed against the working methods of the police . It is not unusual in our society for the representatives of a profession to reply to public attacks in a way which might be lacking the necessary reflection and which might be somewhat inappropriate . The appellants were not familiar with the legislation on defamation either .

PERSON has maintained that there must be a difference between what wellknown politicians must endure in respect of statements related to their political activities and the protection he enjoys when ‘ from his professional standpoint he engages in important matters of public ORG . I do not agree ... and do not understand ... how this can be argued . In my opinion and as a matter of principle , when a scholar – for example in law – embarks on a public debate on matters of public interest he should not enjoy a greater right to protection under the defamation legislation than a politician .

If I nevertheless agree with [ Mr Justice PERSON ’s ] conclusions , it is because I accept that there is a need to provide the best possible terms for a debate on ‘ matters of public PERSON and that [ such a debate ] might suffer if statements such as those dealt with in this case are not declared null and void , even if their background is taken into consideration . ”

On DATE ORG ordered the reopening of CARDINAL of the “ boomerang cases ” . The requests to this effect which had been lodged in DATE had been rejected by ORG . ORG granted leave to appeal . Pursuant to section CARDINAL of LAW ORG found , in its final decision , that in the special circumstances at hand the correctness of the convictions was doubtful and that weighty considerations warranted a reassessment of the guilt of the convicted persons . In ORG view it was evident that police brutality had existed to a certain extent during DATE . The reason for the denial by police officers of any knowledge of such incidents had to be sought in “ misunderstood loyalty ” . It was highly probable that some police officers had given false evidence during the investigations of police brutality in GPE . On DATE the CARDINAL convicted persons were acquitted at the request of the prosecution which had found it unnecessary to bring new charges , failing a sufficient general interest .

NORP Under NORP defamation law , there are CARDINAL kinds of response to unlawful defamation , namely the imposition of a penalty under the provisions of LAW , an order under its LAW declaring the defamatory allegation null and void ( mortifikasjon ) and an order under LAW DATE ( Skadeserstatningsloven – Law no . CARDINAL of CARDINAL DATE ) to pay compensation to the aggrieved party . Only the latter CARDINAL were at issue in the present case .

Under LAW , a defamatory statement which is unlawful and has not been proved may be declared null and void by a court . The relevant part of this provision reads :

“ CARDINAL . When evidence of the truth of an allegation is admissible and such evidence has not been produced , the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute . ”

Such a declaration is applicable only with regard to factual statements , the truth of value judgments not being susceptible of proof .

Although the provisions on orders declaring a statement null and void are contained in LAW , such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil - law remedy .

In DATE there has been a debate in GPE as to whether one should abolish the remedy of null and void orders , which has existed in NORP law since DATE and which may also be found in the laws of GPE and GPE . Because of its being deemed a particularly lenient form of sanction , ORG has expressed a wish to maintain it .

Section CARDINAL of LAW DATE reads :

“ A person who has injured the honour or infringed the privacy of another person shall , if he has displayed negligence or if the conditions for imposing a penalty are fulfilled , pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable , having regard to the degree of negligence and other circumstances . He may also be ordered to pay such compensation for non - pecuniary damage as the court deems reasonable .

If the infringement has occurred in the form of printed matter , and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection , the owner and publisher are also liable to pay the compensation . The same applies to any redress imposed under the first subsection , unless the court finds that there are special grounds for dispensation … ”

Conditions for holding a defendant liable for defamation are set out in LAW of LAW , ORG and CARDINAL of which provide :

“ LAW . Any person who by word or deed unlawfully defames another person , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding DATE .

Article CARDINAL . Any person who , by word or deed , behaves in a manner that is likely to harm another person ’s good name and reputation or to expose him to hatred , contempt , or loss of the confidence necessary for his position or business , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding one year . If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances , imprisonment for a term not exceeding DATE may be imposed . ”

A limitation to the applicability of LAW follows from the requirement that the expression must be unlawful ( rettsstridig ) . While this is expressly stated in LAW , LAW has been interpreted by ORG to include such a requirement .

Further limitations to the application of LAW are contained in LAW , the relevant part of which reads :

“ CARDINAL . Punishment may not be imposed under Articles CARDINAL and CARDINAL if evidence proving the truth of the accusations is adduced .