No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicants were born in DATE , DATE and DATE respectively and live in LOC - Ivanić .

The applicants allege that on DATE at TIME the third applicant and his brother Z.Ð were attacked in front of the “ PERSON ” restaurant in Ivanić Grad by a group of CARDINAL men . The police intervened and took the third applicant and his brother to the Ivanić Grad police station . The third applicant refused to sign the police incident report , which stated that he had QUANTITY of alcohol in his blood . When , at TIME , the first and second applicants arrived at the police station they found that the third applicant had been beaten up and had blood all over him .

When the second and third applicants went to their car , QUANTITY police officers , CARDINAL of whom was PERSON , approached them . The unidentified police officer opened the door and PERSON pulled the second applicant out of the car , twisting her right arm , punched her in the chest and kicked her in the abdomen . PERSON then kicked the third applicant in the abdomen and seized him by the throat . The second applicant called FAC to tell them about the incident , but there was no reaction .

After the incident , the applicants and other members of their family went to ORG hitne medicinske pomoći , ispostava ORG ) , where the doctor refused to record the applicants’ injuries . The applicants and other family members then went to ORG ( FAC ) , where they were examined at TIME It was established that the second applicant had suffered contusions of the chest , head and pelvis ( contusio thoracis , capitis et pelveos ) , while the third applicant had suffered contusions on the head , with abrasions , and on the nose ( contusio capitis cum excoriations et contusio nasi ) . The injuries were classified as minor bodily injuries .

On an unspecified date , the first applicant complained to ORG ( ORG zdravstva i socijalne skrbi ) that his family had not been treated correctly at ORG . On CARDINAL DATE ORG , the principal of ORG ( PERSON ORG ) , submitted his observations to the Ministry , stating that the applicants had pressured the doctor in charge to diagnose injuries , but the doctor had behaved professionally and refused to record injuries that did not exist .

The Government alleged that on DATE in the evening GPE , a son of the first and second applicants and brother to the third applicant , was having dinner at the “ PERSON ” restaurant in Ivanić Grad when PERSON , obviously very drunk , approached him , insulted him because of his GPE origin and spat in his food . GPE left the restaurant , but soon afterwards , at TIME , came back with the third applicant to retrieve his car , which had been parked in front of the restaurant .

There was a verbal and then a physical dispute between GPE and the third applicant on the CARDINAL side and FAC on the other . GPE and the third applicant were aided by their relatives GPE , GPE , GPE and GPE The police soon arrived and the conflict then ceased . The participants were taken to the Ivanić Grad police station .

At TIME a small group of GPE , including the first and the second applicants , arrived at the police station in search of FAC When the police officers warned them off , they left the police station . However , the second applicant continued to shout in front of the police station , insulting and threatening the police officers . Police officers PERSON and PERSON , now dressed in plain clothes as they were no longer on duty , approached the second applicant asking her to calm down , without using any force . The second applicant then left .

The applicants had then gone to ORG , where the doctor was unable to detect any injuries to them .

On DATE the Ivanić Grad police interviewed GPE , GPE and the third applicant , as well as a witness , ORG , a waitress in the “ PERSON ” restaurant .

I.G. stated that at the critical time she had been serving GPE in the restaurant when ORG had approached him , insulted him because of his GPE origin and spat in his food . GPE had left and had soon come back with CARDINAL other GPE persons , a man and QUANTITY women . A dispute , at first verbal and then physical , had ensued . She could not see clearly who had hit whom , but had heard verbal insults from everyone .

The third applicant said that after his brother had come home and told him about the abuse by FAC at the restaurant , the CARDINAL of them had returned to the restaurant , since their car had been left there . A group of unknown men , including FAC , had approached them . The third applicant had started to run home when suddenly somebody had hit him in the back . He had fallen to the ground and the men had continued to beat him all over the body . He had lost consciousness .

GPE also described the incident in the restaurant and said that when he had come back with the third applicant to retrieve his car , which was parked in front of the restaurant , a group of unknown men , including FAC , had approached them . He and his brother had started to run home . When he got home and saw that his brother was not there , he had gone back to look for him . He had found him in FAC . They had telephoned their relatives GPE and GPE and they had all returned to the restaurant , where they had found ORG , who had immediately started to insult them and then approached them and hit them . They had hit him back . PERSON had then kicked GPE several times in the belly . The police had then arrived and the fighting had ceased .

M.Š. also described the incident in the restaurant , admitting that he had verbally insulted GPE because of his GPE origin and then spat in his food . He explained that after a few minutes GPE had come back with his brother and CARDINAL GPE women . They had started to insult him and then attacked him . He had defended himself by hitting and kicking the attackers . The police had then arrived and the fighting had ceased .

On DATE the Ivanić Grad police indicted GPE , GPE , the third applicant , GPE and GPE in ORG . On DATE , on the basis of the police report and without holding a hearing , that court found GPE , GPE , GPE and GPE guilty of :

“ on DATE at TIME in LOC , ... in the “ Yogi ” bar ... , disturbing public order and peace in that the first defendant PERSON entered the said premises obviously drunk , approached a table where the second defendant PERSON was sitting , started to insult him ... , and spat in his food . Immediately after that the second defendant PERSON stood up and left the restaurant . After some time , the second defendant PERSON came back , together with his brother , the third defendant NORP , to retrieve his car , which was parked in front of the restaurant . The first defendant PERSON , together with CARDINAL unknown men , approached them , and then also the fourth defendant PERSON and the fifth defendant ORG , who sided with the second and the third defendants and insulted the first defendant and the others ...

After the verbal insults , the first defendant PERSON attacked the fourth defendant PERSON , who is pregnant , and the fifth defendant ORG , as well as GPE and GPE who were in their company , and hit them several times in the belly . The second defendant PERSON and the third defendant NORP also got involved in the fight with the first defendant PERSON , all hitting and kicking each other .

When officers from the Ivanić Grad police station arrived , the defendants stopped disturbing the peace . ”

ORG issued a minor - offences order finding ORG guilty under LAW ( Zakon o prekršajima protiv javnog reda i mira ) , and fined him CARDINAL NORP kunas ( HRK ) . The other defendants were found guilty under LAW and fined HRK CARDINAL . The order in respect of LOC became final , while GPE , GPE and GPE objected , and on CARDINAL DATE the same court , after having heard the defendants , again found them guilty and issued a warning against them . No appeal ensued .

The proceedings in respect of the third applicant were severed since he was a minor . On DATE ORG found him guilty of participating in a fight with his brother PERSON against FAC and a court reprimand was issued against him . No appeal ensued .

On DATE the Ivanić Grad police station indicted the second applicant before FAC , alleging that on DATE at TIME she had disturbed the peace in Ivanić Grad in that she had approached her husband ’s car and shouted and pressed the car ’s horn . She had also verbally insulted the police officers at the Ivanić Grad police station , calling them thieves , threatening to burn their houses down and cursing them .

On DATE ORG submitted a report to the Ivanić Grad police station stating that the second applicant had been seen by a doctor in that hospital on DATE at TIME and that she had sustained contusions to the chest , head and pelvis at the hands of an unknown person ; and that the third applicant had suffered contusions on the head , with abrasions , and a contusion on the nose .

A medical report of DATE shows that ultrasound examination of the second applicant revealed a subcutaneous haematoma in the sacral area measuring QUANTITY .

On DATE the Ivanić Grad police station interviewed ORG . , a waitress at the “ GPE ” bar located near the scene of the incident of DATE at TIME She said that at that time she had been at the terrace of the bar together with CARDINAL police officers , PERSON and PERSON She had heard noise coming from a nearby car park , the noise of a car horn and shouting . Police officer PERSON had gone to see what was going on . She had heard female voices shouting . Other police officers soon joined him . Shortly afterwards she had heard PERSON shout ” Stop ! Police ! ” . She had gone back into the bar and then come out again . She had seen police officers approaching the car and the situation had calmed down . Soon after that PERSON , who lived nearby , had come to the bar saying that the noise had woken him . She had told him not to go there and that the police had already taken care of the situation . She also said that it was not true that the police officers had used force , they had only asked the unknown persons to calm down .

On DATE the Ivanić Grad police station interviewed GPE , who said that on DATE at TIME he had been on the terrace of the “ GPE ” together with GPE . and CARDINAL police officers from the Ivanić Grad police station , PERSON and A.B. He had heard noise from the nearby car park – someone had been sounding a car horn . Officer PERSON had gone over to see what was going on . The shouting had continued and judging by the voices he had heard he had concluded that they belonged to several women . Police officer PERSON had also gone to the car park . Soon after that he had heard PERSON shout “ Stop ! Police ! ” . He had then left the terrace and approached the car park , where he had seen a group of GPE coming from the direction of the police station , talking loudly . CARDINAL of the women in the group had probably called FAC telling them that she had been beaten by QUANTITY police officers in Ivanić Grad , which was untrue . Soon after that CARDINAL or CARDINAL uniformed police officers had appeared and the situation had calmed down . He also said that it was not true that the police officers had used force , they had only asked the unknown persons to calm down .

On an unspecified date the second applicant lodged a criminal complaint against the CARDINAL police officers with ORG ( Općinsko državno odvjetništvo u PERSON ) , on charges of ill - treatment while on duty or in the exercise of services on behalf of a public authority ( zlostavljanje u obavljanju službe ili javne ovlasti ) . She alleged that CARDINAL police officers , CARDINAL of whom was PERSON , had beaten her and her son and that they had then started to shout .

On DATE an identification parade was held at the Ivanić Grad police station with CARDINAL men , CARDINAL of whom was police officer A.B. The second applicant did not identify any of the men as the perpetrators of the alleged violence against her on DATE .

On DATE the Ivanić Grad Municipal State Attorney ’s ORG dismissed the second applicant ’s complaint , finding , inter alia , that she had been unable to identify the alleged perpetrators during the identification parade , and that the surveillance camera at the Ivanić Grad police station had not recorded anything suspicious . The relevant part of the decision reads :

“ PERSON lodged a criminal complaint against police officer ORG and an unknown police officer from the Ivanić Grad police station for the criminal offence of ill - treatment while on duty or in the exercise of services on behalf of a public authority ...

In her criminal complaint she alleges that on DATE at TIME she and her husband GPE went to the Ivanić Grad police station because their sons PERSON and PERSON had been taken there . PERSON was covered in blood and she took him out of the police station and they sat in their car parked in front of the police station . While she was lighting a cigarette a police officer opened the car door , grabbed her by her right arm , almost breaking it , dragged her out of the car and kicked her in the chest and belly . PERSON , who was with the police officer , took PERSON out of the car , kicked him in the belly , grabbed him by the neck and lifted him against the car . This whole event was recorded by the surveillance video camera , and she suggests that the recording be seen .

PERSON said that he was employed as a police officer in the Ivanić Grad police station and that on DATE he had been sent to Kloštar Ivanić because [ someone was ] disturbing the peace . At TIME he had arrived at the “ PERSON ” restaurant , where he had found PERSON sitting in front of the restaurant , obviously drunk , and several persons of GPE origin who were shouting at FAC He and other police officers who had arrived saw that there had been a fight between FAC and the GPE persons and that FAC had hit these persons several times . He had taken FAC to the Ivanić Grad police station and then he had gone off duty and left the police station at TIME to go to the “ GPE ” bar . At TIME he had heard noises and cursing outside the bar ... so he had gone with another police officer to see what was going on . As they approached an “ Opel ” type car with NORP licence plates he had heard a woman ’s voice shouting even louder and someone was also sounding the car horn , so they had tried to calm them down . They had not calmed down , however , and more police officers had come out of the police station , and he had returned to the bar . He asserted that neither he nor any of the other police officers had used any force against any of the persons present .

PERSON said that ... he had been taken to the police station , where he had been told that he had QUANTITY of alcohol in his blood , which was not true , so he had refused to sign the report . Soon after that his parents had arrived and when he was sitting in their car , parked outside the police station , a man in grey clothes had come and opened the car door , grabbed his mother GPE by the arm , dragged her out of the car and hit her . After that another unknown man in plain clothes had grabbed him by his arms , dragged him out of the car and kicked him in the belly , grabbed him by the neck and pressed him against the car .

ORG said that on DATE at CARDINAL he had been in the “ GPE ” bar situated next door to the Ivanić Grad police station . The waitress was GPE . and there was also another customer , PERSON At one moment he had heard noises and the sound of a car horn coming from the parking lot and PERSON had gone there . He was also curious and had gone out onto the terrace to see what was going on . He had seen a large group of GPE persons coming from the direction of the police station , talking loudly , and one of the women had called the police complaining that she had been beaten by CARDINAL policemen , which was untrue since GPE had been standing only a couple of metres away and had seen everything . After that a few more police officers had arrived and the noise had stopped .

ORG . said that she had been working as a waitress when she heard noise coming from the car park – a car horn and women shouting . She had heard someone shout “ Stop ! Police ! ” , and had gone back into the bar . She explained that the police officers had not used any force but had merely asked the persons present to calm down .

The medical report of CARDINAL DATE from ORG states that ORG allegedly suffered blows to the chest , head and pelvis , without mentioning visible signs of injuries .

The criminal offence of ill - treatment while on duty or in the exercise of services on behalf of a public authority is committed by an official who in the performance of duties on behalf of a public authority ill - treats or insults another person or behaves in a manner which harms his or her dignity . An identification parade was held in the police station but PERSON failed to pick out the person who had aggressed her on DATE from among the QUANTITY police officers in the line - up .

The Ivanić Grad police station submitted video recordings from the surveillance video cameras for DATE , which showed no evidence that police officers had beaten PERSON or any other person .

Neither the information collected nor the video tape indicated that PERSON or any other police officer had hit PERSON or ill - treated her in any other manner , and therefore there is no reasonable suspicion that he committed a criminal offence .

The second applicant was instructed that she could take over the prosecution and bring charges before ORG within DATE .

On DATE the second applicant brought charges ( optužni prijedlog ) against PERSON and an unknown police officer before ORG ( PERSON ) . She alleged that on DATE at TIME the QUANTITY police officers had beaten her and her son PERSON . On DATE the court asked the second applicant to amend her submissions within DATE . The second applicant complied . However , on DATE ORG found that the second applicant ’s submissions did not take the form required by LAW .

The second applicant has seen doctors on several occasions since the alleged incident . On DATE she was diagnosed with a mild chronic neural lesion ( blaža kronična neuralna lezija ) .

The medical report of DATE on the third applicant shows that he complained that he had been hit by a pupil at the school he was attending . He had a deviation of the nasal septum which could be of a post - traumatic character . There were no signs of broken nasal bones .

On DATE the first applicant complained to the Government that his son , the third applicant , had been constantly insulted and frequently beaten by other pupils because of his GPE origin .

An interview with the third applicant was conducted at the Ivanić Grad police station on DATE . He explained that on an unspecified date in DATE , after physical training , he had gone to the changing room to pick up his things . PERSON had been in front of him . Someone had pushed ORG and his head had hit the third applicant ’s face , hurting his nose . He had reported it to the class teacher , who had sent him to see a doctor . He had not had any other symptoms and the pain had ceased after DATE .

On DATE ORG , Education and ORG asked the school authorities to reply to the first applicant ’s allegations of DATE . The school prepared CARDINAL reports . The relevant part of the first report , drawn up on DATE by the applicant ’s class teacher , reads :

“ ... after DATE at this school I encountered conflicts between pupils . D. GPE first reported a run - in with another pupil when pupil PERSON unintentionally hit him on the nose with his head because PERSON was standing behind PERSON when ORG swung his head back . ... PERSON came to me complaining that his nose hurt and told me that PERSON had hit him hard . He made it quite clear that the blow had been unintentional , which other pupils who witnessed the incident confirmed . The DATE PERSON complained that his nose still hurt , so I sent him to see a doctor . I also tried to inform the PERSON family , but their mobile telephone was switched off . Since it was established that the contact between PERSON and ORG had been accidental , with no intention of hurting PERSON , I had no reason to punish anyone . This happened on DATE , DATE and DATE .

On DATE , during a break , a verbal and physical conflict involving pupils ORG , GPE , GPE and PERSON occurred . From interviews with these pupils I learned that ORG , GPE and ORG were playing with a box ... which annoyed PERSON , who wanted to throw the box away , so PERSON and the other pupils started arguing . Pupils PERSON , GPE and ORG said that after some pushing and shoving PERSON threatened them with physical violence and PERSON , ORG answered by swearing at him . PERSON then hit ORG During the following break the pupils reported the incident to me and I reported it to the authorities . A class teacher gave pupils PERSON , GPE and GPE oral warnings . PERSON was given a written warning because he had already had oral warnings .

On DATE , during a break , my pupils came to me to report a fight started by PERSON . They told me that ORG and ORG had been standing outside the history classroom talking when PERSON had arrived and kicked ORG ’s bottom . D.A. had asked him why had he done it and PERSON had insulted her . She had returned the insults and entered the classroom . PERSON had followed her in , pressed her against a wardrobe in the classroom , grabbed her by her hair and kneed her in the hip and belly . The pupils had seen PERSON hit her CARDINAL times before the boys had managed to separate them . With the help of the history teacher ... PERSON confessed that he had started the fight and explained what he had done ... He confirmed the ORG version of events and wrote it all down on paper , as did the girls who witnessed it . He even demonstrated how he had pressed D.A. against the wardrobe and held her while he hit her . I reported the incident to a pedagogue , PERSON , who immediately talked to PERSON , ORG and the pupils who witnessed the incident , then called PERSON ’s and PERSON ’s parents and the police . ORG was also informed and set about resolving the situation . I informed the teachers of the incident at their meeting on DATE and suggested giving PERSON a written reprimand for causing and participating in verbal and physical conflicts , inflicting bodily injuries on ORG and violating the school rules by not wearing school slippers , and that suggestion was unanimously accepted .

As regards unacceptable behaviour towards pupil PERSON , PERSON complained to me on three occasions that other pupils had been teasing him ... about his age and his alleged liking for a pupil in another class . After PERSON ’s complaint I warned the pupils concerned and instructed them to avoid verbal conflicts . I also talked to PERSON on several occasions , and he told me that if the teasing continued he would hit the pupils concerned . On the basis of these interviews I concluded that PERSON identified verbal insults with physical violence and considered it appropriate to react to teasing with violence , without showing any remorse .

After the incident in DATE when PERSON inflicted injuries on ORG , the pupils told me that PERSON ’s usual reaction to teasing among the pupils included threats of physical violence , swearing and inappropriate comments about a girl pupil from his class , with allusion to her physical attributes and to sexual activity . As an example of his typical behaviour , the pupils mentioned PERSON ’s kicking of pupils in passing . He would bend his knee and kick them with a sudden backwards movement of his leg . During our latest conversation the pupils told me that they had been avoiding PERSON for some time , explaining that they had stopped teasing him out of fear that he would put his threats of physical violence into practice . PERSON , on the other hand , has never complained to me that any of the pupils have tried to harm him . ”

The relevant part of the second report , drawn up on DATE by the pedagogue at the same school , reads :

“ PERSON , has very frequent verbal conflicts with his classmates and sometimes with his teachers as well . The interviews with him reveal that in his opinion the cause of these conflicts is that he ‘ wants to have fun and make jokes but the others do not see it that way.’ On innumerable occasions the class teacher , the defectologist and I have explained to him that what he perceives as a joke is not necessarily [ seen as such ] by others , and that sometimes people are not in the mood for jokes but that does not require a vehement reaction .

He is repeating the sixth grade and at the beginning of DATE he said he missed his friends from his former class , but he also promised to be a better pupil , to listen to teachers , me and the defectologist and to refrain from arguing with other pupils . I praised him for that attitude ; he showed some improvement in his school work , but the conflicts with other pupils have persisted . Mostly pupils from his class are involved , but sometimes he would go to the class attended by his sister NORP and try to solve her problems , in an inappropriate manner , shouting and threatening younger pupils . As regards educational measures , on DATE [ DATE ] he was issued an oral reprimand by a class teacher and on DATE a written warning for fighting with other pupils , of which the parents were informed orally by the class teacher . The other pupils involved in the fighting were given oral warnings while PERSON got a written warning for repeating the unacceptable behaviour for which he had been warned orally on DATE .

On DATE during a break ... there was a scuffle between PERSON and pupil PERSON The pupils who witnessed it came to me and the class teacher . [ We found ] D.A. at the scene , crying , with dishevelled hair , obviously in shock , clutching her belly with both hands . The pupils told us what had happened . I took D.A. to my office and assessed whether an ambulance had to be called . D.A. said that she was frightened and had pains in her head and belly , but that there was no need to see a doctor . She had no external injuries , save for pulled hair and red marks on her belly .

PERSON had no injuries , he said that he had hit her because they had said something to him which had made him angry . The parents of both pupils were informed . The PERSON parents came immediately , and ORG mother came later ... The PERSON parents wanted to talk with NORP immediately to see what had happened . Since they were shouting and talking at the same time as PERSON , I asked them to calm down and told them that they had no right to question D.A. without her parents being present . As they had been informed about the incident , I told them to go home and that my duty was to report the incident to a welfare centre and the police , and I asked them to take PERSON home . Dissatisfied with what I had said , they reacted inappropriately , especially PERSON , complaining that when PERSON had been insulted there had been no reaction and the police had not been called . They said they would deal with it in their own way . TIME PERSON ’s father came to my office , upset and disappointed that I had not called an ambulance and that the police had not come to the school .

At a ORG meeting on DATE it was decided that a written reprimand would be issued against PERSON for serious physical conflict in which he had inflicted bodily injury . Although this was not his first attack on a pupil at the school and the usual measure would be a harsh reprimand , in view of his overall social condition , which affected his development , a more lenient punishment was issued .

It is to be stressed that we regularly talk to PERSON , at his request ( CARDINAL times a week ) , and we also provide him with adequate aid in terms of conversations with him , alone and together with other pupils ; he receives help with his school work ( once I personally cleaned the muddy sneakers he wore to school instead of slippers , because he did not know how to do it ) .

DATE he is reported to have punched pupil GPE on the left cheek because GPE threw his cap at him .

As regards the incident when his nose was hurt on DATE and DATE ( I do not know the exact date because PERSON can not remember exactly when it happened ) , PERSON said in the presence of his parents that he happened to be standing behind a boy who swung his head back because he had long hair , and that his nose had been like that before , which is confirmed by medical documents submitted by the parents ...

I would like to stress that in both my personal and my professional capacity I have done a lot to help the PERSON parents and their children . Many times the GPE parents have objected that we do not know how to resolve problems with GPE people , alleging that the pupils at school , as well as other people , had been denigrating them . I expressed my regret at such behaviour and stressed that they could not have experienced anything like that from me ( which they confirmed ) , and reassured them that I would certainly react in the event of such behaviour by the pupils , in order to protect their children , and direct the pupils as to the correct attitude to adopt towards the GPE . I could not be held responsible for other people ’s reactions because these things are a matter of personal culture .

I advised them to tell their older , grown - up children who come to the school to take their younger siblings home to wait outside the school or not to enter the school before the end of classes without registering with a pupil on duty ( they would get angry when asked to show their identity cards by pupils on duty , and would go to the classrooms without authorisation ) . In conversations with them , they have admitted that their children also sometimes use bad language they hear at home , and I think that their complaint that their children are the only ones ill - treated at school is not true .

The social services and the police were informed about the supervision of pupils in order to help them with their existential problems .

On an unspecified date the second applicant lodged a criminal complaint with ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u PERSON ) on charges of bodily harm ( tjelesna ozljeda ) . It appears that this complaint was related to beatings the third applicant had suffered at school .

On DATE the second and third applicants were invited to ORG Attorney ’s ORG for an interview in connection with the incident of DATE .

The medical report of CARDINAL DATE indicates that the third applicant claimed that a pupil had hit him in the back with a ball and that he had been beaten by pupils at school and insulted constantly for DATE . He alleged that he had pains in his belly and back . There were no visible injuries . He was diagnosed with abdominal contusions ( contusio abdominis ) . The ultrasound examination did not show any injuries . He refused hospitalisation .

On DATE , the first applicant lodged a complaint with an unspecified body against the school authorities who were , in his view , not being proactive in protecting his son , the third applicant , from constant beatings .

On DATE the third applicant was examined in connection with his headaches by the ophthalmologist in GPE ( PERSON ) . The applicant alleged that he had been beaten up at school and out of school . The doctor requested the opinion of the school authorities and the school psychologist .

On DATE the third applicant was examined again , and was diagnosed as having serious impairment to the sight in his right eye as a result of a contusion ( cephaela gradus gravis post contusionem ) . The applicant said that he had been beaten up at school and out of school . The doctor observed that there had been no response from the school authorities or the school psychologist and asked once again for their opinion . The third applicant was referred to a neurologist and a brain surgeon . There is no indication that he followed the recommendation .

On DATE ORG found the third applicant guilty of inflicting bodily harm on D.A. on DATE and ordered him to apologise to D.A. and to be placed under strict care and supervision .

On an unspecified date the second applicant complained about the violence against the third applicant in school and submitted medical documentation . She alleged that she and the boy ’s father had complained to the school about PERSON being beaten by other pupils on many occasions and that nothing had been done . She also alleged that they ( the parents ) had been thrown out of the school and not allowed to pay insurance for PERSON at the school . She enclosed medical documentation concerning the third applicant dated DATE , showing that he had been hit on the head on CARDINAL DATE and DATE and DATE .

On DATE the school head master drew up a report at the request of ORG for ORG . The relevant part of the report reads :

“ Observations about pupil PERSON

In the sixth grade [ PERSON ] has had frequent verbal conflicts with pupils from his class ( sometimes also physical conflicts such as pushing , or pulling clothes ) , and sometimes with teachers as well . The interviews with him reveal that in his opinion the cause of these conflicts is that he ‘ wants to have fun and make jokes but the others do not see it that way’ . On innumerable occasions the class teacher and professional assistants at school have explained to him that what he perceives as a joke is not necessarily [ seen as such ] by others and that sometimes people are not in the mood for jokes , but that does not require a vehement reaction .

The police intervened for the first time during PERSON ’s sixth grade in DATE , after an serious incident with a pupil . ... PERSON grabbed the girl by the head and kicked her in the belly . After our intervention with the relevant outside services the parents , possibly dissatisfied with our conduct , complained to ORG , which asked for our observations .

[ the incident when PERSON was hit on the nose is described ]

In DATE PERSON complained about having a headache because ‘ he had been hit with an iron bar’ . During the interview with him , we learned that DATE PERSON had been hit by unknown persons ... , out of school , after lessons . He refused our suggestion to call his parents to come to take him home . Instead , he asked for painkillers as he frequently does ... After TIME he left the school without authorisation , went to see a doctor and returned after TIME with CARDINAL prescriptions ...

On DATE the Ðurđević parents were invited to the school to fetch their daughter , who was in sixth grade and who was throwing chairs and benches in her classroom following a verbal conflict with other pupils in her class . When PERSON heard about it , he tried to ‘ solve the situation in his way’ , by threatening the pupils and teachers ( he mentioned a knife ) . The teachers calmed him down but he had already called his brother or father on a mobile telephone and soon his grown - up elder brother arrived at the school . At the entrance he brushed past the pupil on duty and shouted at him , and opened various classroom doors looking for his sister and brother . One of the teachers ... heard the noise and asked the young man to stop making noise and disturbing classes and told him that he would find his brother and sister . But the brother continued to address the teacher in an inappropriate manner and threatened to ‘ take things into TIME . The teacher immediately called the police and it is possible that this is incident the PERSON parents were referring to in connection with police intervention .

PERSON frequently complains to teachers of headaches and asks for pills and permission to leave the classroom . Sometimes he leaves without authorisation or without the ORG knowledge . ...

In principle we do not give pills to pupils but call the parents to pick up their children and take care of them .

PERSON is also complaining less frequently of being insulted by other pupils . We have talked to these pupils and taken educational measures when such incidents continued . It has been noticed lately that PERSON has been refusing schoolwork , has reacted vehemently to advice and would sometimes address the pupils and teachers in an inappropriate manner .

I would like to stress that the class teachers informed the parents at parent - teacher meetings of verbal incidents involving individual pupils , and the parents reacted more than correctly and apologised . I would also like to stress that CARDINAL other GPE pupils attend our school and that they are good pupils and cooperation with their parents is satisfactory for all . ”

The relevant part of LAW ( ORG nos . DATE Zakon o kaznenom postupku ) provides as follows :

( CARDINAL ) Where not otherwise provided by law , the ORG Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a criminal offence liable to official prosecution and where there are no statutory obstacles for prosecution of that person . ”

“ ( CARDINAL ) All ORG bodies and all legal entities are obliged to report criminal offences liable to official prosecution , whether they have been informed thereof or have learned about such offences on their own .

“ ( CARDINAL ) A criminal complaint shall be lodged with a competent ORG Attorney in writing or orally .

The relevant part of ORG ( Official Gazette nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL ) reads :

“ Anyone who acts in an exceptionally insolent and impolite manner in public by insulting citizens or disturbing their peace , shall be fined for a minor offence ... or imprisoned for DATE . ”

“ Anyone who fights , quarrels or shouts in public or otherwise disturbs public order and peace , shall be fined for a minor offence ... or imprisoned for DATE . ”


JEDNOTA KATOLICKÝCH TOVARYŠŮ  v. THE CZECH REPUBLIC

The applicant , Jednota Katolických ORG , is a NORP non - profit religious organisation with its head office in GPE . It was represented before the ORG by Mr O. Choděra , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON .

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

On DATE the applicant lodged an action against GPE ( GPE město GPE ) with the GPE CARDINAL ORG ( obvodní soud ) , seeking to establish its ownership of property which had been bought by the purported legal predecessor of the applicant in DATE .

On DATE the court received the applicant 's power of attorney for its lawyer .

After adjourning hearings on DATE and DATE upon the applicant 's request , on DATE for a lack of evidence and on DATE and DATE because of the absence of CARDINAL of the parties to the proceedings , ORG dismissed the applicant 's action on DATE .

On DATE ORG ( městský soud ) , upon the applicant 's appeal of DATE , quashed ORG judgment and remitted the case .

After the adjournment of a hearing on DATE because of the applicant 's failure to submit certain documents , on DATE ORG granted the applicant 's action .

Upon the defendant 's appeal and after receiving the applicant 's observations on DATE , ORG upheld ORG judgment on DATE .

On DATE the defendant lodged an appeal on points of law ( dovolání ) with ORG ( PERSON ) .

On DATE and CARDINAL DATE the applicant submitted its observations .

In the meantime , on DATE and CARDINAL DATE the defendant , and on DATE and DATE the applicant , replaced their lawyers .

On DATE ORG quashed the lower courts judgments of DATE and CARDINAL DATE and remitted the case to ORG for further proceedings .

On DATE and CARDINAL DATE respectively , ORG judgment was notified to ORG and the applicant 's lawyer .

On DATE the case was assigned to another judge .

On DATE and DATE respectively , ORG requested the applicant to present additional evidence and the applicant requested the court to hear additional witnesses .

On DATE ORG dismissed the applicant 's action .

On DATE ORG , upon the applicant 's appeal , upheld this judgment .

On unspecified dates , the applicant lodged an appeal on points of law with ORG and a constitutional appeal ( ústavní stížnost ) with ORG ( GPE soud ) .

On DATE ORG dismissed the applicant 's appeal as manifestly ill - founded .


The applicants were born in DATE , DATE , DATE and DATE respectively . The first CARDINAL applicants live in GPE ; PERSON lives in GPE and PERSON is interned in a psychiatric hospital in PERSON . Ms PERSON is a second - degree invalid and Mr A. Gusovschi a first - degree invalid .

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

The applicants have been in conflict with various local and regional authorities and with their neighbours .

In DATE the applicants ' house was disconnected from the natural gas system owing to their failure to pay the full price of the gas used . On DATE Mr PERSON initiated court proceedings against the system 's operator “ GPE - Gaz ” and ORG seeking the re - connection of the house to the gas system and payment of damages .

On DATE ORG accepted his claims . On DATE ORG quashed that judgment and ordered a re - hearing of the case because CARDINAL of the defendants had not been summoned to court .

It appears that the courts allowed the other CARDINAL applicants to join Mr PERSON case as co - plaintiffs .

On DATE ORG struck the case out of its list because of the failure by the applicants to appear at several of its hearings .

On DATE ORG quashed that judgment and ordered a re - hearing of the case , finding that the applicants had not been summoned to court and that the proceedings had been protracted .

On an unknown date the applicants asked for the transfer of the case to another court . On DATE ORG forwarded the request to ORG , which rejected it on DATE .

On DATE ORG rejected their claims as unfounded . On DATE ORG quashed that judgment and ordered a full re - hearing of the case . On DATE ORG refused to re - examine its judgment of DATE .

On DATE the applicants sought the removal of CARDINAL of the judges of ORG . On DATE ORG rejected this complaint .

On DATE ORG rejected most of the applicants ' complaints , finding that they had persistently refused to submit the necessary documents to the defendant in order to allow the re - connection to the natural gas system in accordance with the law . Moreover , no evidence had been adduced of any damage caused to the applicants . The court also found that the proceedings had lasted a considerable period of time before the courts and it therefore accepted the applicants ' main claim and ordered the re - connection of their house to the natural gas system , subject to the submission of the relevant documents by the applicants .

On DATE ORG upheld that judgment , which became final .

In numerous separate proceedings the applicants requested the opening of criminal investigations against a number of persons , most of them being their neighbours who had allegedly damaged the applicants ' property and had attempted to drive them away from the village . Several complaints concerned the alleged failure of the local police , the prosecution and other authorities to react to their complaints about unlawful acts committed by the applicants ' neighbours and their dog . On each occasion a prosecutor refused to open criminal proceedings , having verified the case file and given detailed reasons for the refusal .

A prosecutor 's refusal to open a criminal investigation against the Prefect of GPE because of the disconnection of the applicants ' house from the natural gas system was challenged in court . On DATE ORG dismissed the complaint as unfounded . On DATE ORG upheld that decision .

The relevant provisions of the new Code of Civil Procedure , in force after DATE , read as follows :

“ DATE : Aims of civil procedure

The aims of civil procedure include the just examination , within a reasonable time , of cases ... ”

“ Article CARDINAL : Time - limits for examination of civil cases

( CARDINAL ) Civil cases shall be decided by the first - instance court within a reasonable time . The criteria for determining the reasonable time are : the complexity of the case , the conduct of the parties , and the conduct of the courts . The court shall ensure observance of the reasonable time requirement in dealing with a case . In examining a specific case on appeal , higher courts shall verify observance with the reasonable time requirement . ”


Preliminary objection rejected (estoppel);Violation of P1-1;Not necessary to examine Art. 14;No separate issue under Art. 18;Just satisfaction reserved

In an order of CARDINAL DATE ORG ( ORG per la pubblica istruzione , which at the time had responsibility for works of cultural or artistic interest ) declared the painting Portrait of a Young Peasant , painted in Saint - Rémy - de - Provence ( GPE ) in DATE by the painter PERSON , to be a work of historical and artistic interest within the meaning of LAW no . CARDINAL of DATE . On DATE the order was served on the owner of the painting , Mr PERSON , an art collector living in GPE .

Early in DATE the applicant decided to buy the painting through an intermediary , Mr GPE , a GPE antiques dealer .

On DATE Mr PERSON therefore sold the work to Mr GPE for the agreed price of MONEY ( ITL ) .

On DATE the applicant gave instructions for that amount , plus ITL CARDINAL,CARDINAL,CARDINAL as remuneration at the customary rate , to be transferred to Mr GPE in exchange for the document confirming the purchase . Mr GPE 's account was credited with the amount on DATE .

Meanwhile , PERSON had on DATE declared the sale of the painting to ORG ( “ the Ministry ” ) , as required by CARDINAL of the aforementioned LAW no . DATE . The declaration had been signed only by PERSON , but mentioned PERSON GPE 's name as the other party to the contract . There was no mention of the end buyer ( the applicant ) or the place of delivery .

The DATE time - limit laid down by section CARDINAL of Law no . DATE expired without the Ministry having exercised its right of pre - emption .

On DATE Mr GPE requested a licence from ORG to send the painting to GPE . The painting was placed in the temporary custody of the NORP Regional Art Gallery pending a decision from ORG as to whether it wished to exercise its right of pre - emption which arose under LAW no . DATE on an exportation .

In a note of DATE the ORG stated that it did not intend to purchase the painting as it was not of sufficient interest to justify the ORG 's acquiring it . However , on DATE the authorities refused Mr GPE 's application for an export licence on the ground that it would be seriously detrimental to the national cultural heritage for the painting to be exported .

On DATE and DATE ORG authorised the painting 's return to Mr GPE .

On DATE Mr GPE made a declaration to the Ministry stating that he had purchased the painting on behalf of the applicant . On DATE the applicant and Mr GPE informed the Ministry that ORG in GPE wished to buy the painting for MONEY ( ORG ) and reiterated that Mr GPE had purchased the painting in DATE on behalf of the applicant . At the same time they invited the ORG to indicate whether it intended to exercise its right of pre - emption under PERSON no . DATE .

In a note of CARDINAL DATE the Ministry informed the parties that it was unable to exercise its right of pre - emption validly since there had been no contract and a mere unilateral declaration of an intention to sell was insufficient . In its note , which was sent to both Mr GPE and the applicant , ORG did not describe the applicant as being the owner or refer to the declaration made on DATE .

On DATE Mr Petretti , acting for and on behalf of the applicant and Mr GPE , applied to ORG in GPE and to ORG for a licence to move the painting to GPE so that ORG could inspect it with a view to its purchase . On DATE the ORG refused permission for the painting to be moved on the ground that there was a risk that it would suffer irreparable damage .

NORP In DATE Mr GPE , in his capacity as “ holder of the painting for and on behalf of Mr PERSON ” , in turn requested permission to transfer the painting to GPE as ORG had asked to inspect it . On DATE the Minister of ORG served on PERSON ( the applicant 's representative ) , certain departments of ORG a request that it be informed whether or not the owner of the painting had decided to move it to GPE . On DATE Mr Petretti , acting for and on behalf of the applicant alone , confirmed that his client agreed to the painting 's being moved . At that juncture , following an informal request from ORG , he also produced a copy of the declaration of DATE . On CARDINAL DATE the applicant wrote to ORG in connection with the technical arrangements for the painting 's transfer . On DATE the ORG gave permission for the painting to be moved to GPE .

In a note to Mr GPE of CARDINAL DATE the ORG referred to the communication of DATE and requested the documents showing that Mr GPE had bought the painting on behalf of the applicant .

On DATE the Minister ordered that the painting be sent to GPE for temporary custody in the LOC and Contemporary Art Gallery . The order , in which express reference was made to the communication of DATE , was issued after the relevant authorities had expressed concern about the conditions in which the painting was being kept , particularly in the light of the uncertainty as to who was the real owner and the failure by ORG in GPE to comply with its undertakings .

The applicant applied for the first time to ORG ( “ the ORG ” ) for judicial review of the order of CARDINAL DATE .

On DATE Mr PERSON , who had replaced PERSON as the applicant 's lawyer , sent a letter to the director of ORG in GPE assuring him that the applicant had no intention whatsoever of infringing NORP law and referring , among other things , to the authorities ' fears that the painting might be illegally exported .

On DATE Mr PERSON asked the Modern and Contemporary Art Gallery in GPE for authorisation to check the painting 's condition at the gallery on his client 's behalf ( the lawyer referred to his client as the “ owner of the painting ” ) . On DATE , with the agreement of ORG , a meeting was therefore held at the FAC and Contemporary Art Gallery in GPE . It was attended by , among others , the applicant , his new lawyer , the director of the gallery and an expert from ORG ( as recorded in TIME ) . The director said that uncertainty had arisen ( as she explained to the applicant 's lawyer in a letter of CARDINAL DATE ) as a result of the above - mentioned application to the ORG . In a letter of CARDINAL DATE the applicant informed the director that he intended to discontinue those proceedings on account of , among other things , the fact that in the meantime the director of the gallery had allowed him , as owner of the painting , access to it at his simple request . A copy of that letter was also sent to ORG in GPE .

In DATE the ORG sought clarification from Mr PERSON about the applicant 's alleged ownership of the painting . The applicant replied by sending a copy of the communications of CARDINAL and DATE . He also stated that there had been no subsequent transfer of title between Mr GPE and himself as he had acquired ownership of the painting directly .

It is apparent from CARDINAL letters sent by the applicant 's lawyer to the relevant Director - General of the Ministry on CARDINAL and DATE , the contents of which have not been contested by the ORG , that the ORG had informed the applicant alone on CARDINAL occasions ( one of which was during a meeting with CARDINAL of PERSON lawyers at ORG office on DATE ) that the NORP ORG was interested in purchasing the painting , but stressed that it had a limited budget for that purpose .

A letter of CARDINAL DATE sent by PERSON to ORG shows that on DATE the latter had telephoned Mr PERSON asking for the applicant 's permission , as owner of the painting , to exhibit it in the Modern and Contemporary Art Gallery in GPE . The contents of that telephone conversation and of the letter referring to it have not been contested by the Government , although the ORG has not been provided with a full transcript of the conversation .

In a letter of CARDINAL DATE the applicant told ORG , referring to their earlier conversations on the subject , that he was willing to sell the painting to the NORP ORG for CARDINAL and stated that it was a much lower price than that being proposed in negotiations with individuals interested in buying the painting . On DATE the applicant drew the ORG 's attention to the fact that it had not responded to his offer within the time - limit he had indicated in his letter of CARDINAL DATE .

On DATE the applicant sold the painting to ORG in GPE for CARDINAL .

The following day the parties served notice of the sale agreement on ORG , as required by CARDINAL of PERSON no . DATE and LAW no . CARDINAL of DATE .

In a note of CARDINAL DATE the ORG informed the parties that it could not ascribe to the declaration the effects provided for under the aforementioned provisions since the applicant did not have valid title to the painting . In particular , the ORG considered that the declaration of the sale in DATE by PERSON to PERSON and the declaration of DATE conflicted with the purpose of LAW no . DATE and did not satisfy the requirements of LAW no . CARDINAL of DATE .

On DATE the applicant asked the ORG to return the painting , which was still in the custody of the Modern and Contemporary Art Gallery in GPE . The request was made pursuant to LAW no . CARDINAL of DATE , which provides , inter alia , that a work of art kept in accordance with the provisions of the decree may be returned to the owner if he can guarantee that it will be kept in good condition . ORG did not reply , however .

On DATE Mr PERSON replied to the note of DATE , pointing out , among other things , that from DATE the NORP ORG had treated the applicant as the lawful owner of the painting , in particular by giving him permission to move the painting from GPE to GPE and by intimating that it wished to buy it from him .

On DATE , in response to an informal request from the NORP authorities , the applicant sent them the bank statements showing that PERSON GPE had purchased the painting on the applicant 's behalf .

In an order of CARDINAL DATE the ORG exercised its right of pre - emption in respect of the DATE sale . It contended that the notice served on DATE was invalid as the communications of CARDINAL DATE and DATE did not contain the information required for the sale to be valid under LAW no . CARDINAL of DATE . ORG considered that on those dates it had not been in a position to establish the true identity of the contracting parties as the applicant had not signed the declaration giving notice of the contract and had thus prevented it from deciding in the light of all the facts whether to exercise its right of pre - emption . In addition , it said that the public interest in acquiring the painting was justified by the dearth of works by PERSON in NORP museums and the need to ensure compliance with the statute that had been infringed . It observed , further , that the fact that the real purchaser of the painting , PERSON , was of foreign nationality took on particular importance for the purpose of protecting the painting .

Accordingly , the Ministry concluded

( a ) that the documents relating to payment for the painting made by PERSON PERSON to Mr PERSON , through Mr GPE , proved that the painting had been sold directly by PERSON to PERSON ;

( b ) that , under LAW of PERSON no . DATE , the right of pre - emption provided for in DATE and CARDINAL subsisted ;

( c ) that it should exercise its right of pre - emption ; and

( d ) that payment of the price stipulated in the DATE agreement , namely ORG CARDINAL , should be made to the title - holder .

The order was served on Mr PERSON and the applicant on CARDINAL DATE and DATE respectively .

Meanwhile , the applicant and ORG had on DATE , DATE respectively sought an order from the ORG annulling the note of DATE . The applicant maintained in particular that the ORG had acted ultra vires , that the relevant provisions of PERSON no . DATE had been infringed and that in this case ORG had made an incorrect assessment of what was in the public interest . The applicant also submitted that LAW of that statute was unconstitutional .

On DATE and CARDINAL DATE the applicant lodged a further application , challenging the failure to reply to his request of CARDINAL DATE for the painting to be returned .

On DATE the applicant applied to the ORG to have the ministerial order of CARDINAL DATE set aside . He complained , inter alia , that the impugned decision had been made ultra vires , that the reasoning was insufficient and self - contradictory , that the inquiry conducted by ORG had been inadequate , that there had been a breach of the relevant provisions of PERSON no . DATE and Articles CARDINAL and CARDINAL of the NORP LAW concerning agency and that the decision had not been made in the public interest as it was incomprehensible that a public interest should exist in DATE when none had existed in DATE . The applicant argued that he had in any event now acquired title by adverse possession . He also complained that the impugned order had been made because he was a foreign national . He alleged , too , that there had been a violation of LAW of LAW , which concerns damages arising out of pecuniary obligations , in that the price paid had not been revised .

Lastly , the applicant asked the ORG to refer to ORG the question whether the relevant provisions of PERSON no . DATE were consistent with Articles CARDINAL , DATE , DATE and CARDINAL of LAW .

The ORG ordered the joinder of the various applications before dismissing them all in a judgment of DATE , which was served on the applicant on DATE .

The court held that the declaration made on DATE had not contained all the essential information required by LAW no . CARDINAL of DATE and accordingly had to be regarded as “ null and void ” . It had not been signed by the real buyer and the place of delivery in GPE had not been indicated . In addition , the ORG held that the communications of CARDINAL and DATE could not have started time running for the purposes of the DATE limitation period as they had not been made by the seller and did not satisfy the requirements of LAW . The uncertainty as to who the real owner of the painting was had consequently prevented the DATE limitation period from starting to run , bearing in mind , too , that the authorities had had to make inquiries to establish who the owner was and that it was for the person declaring the sale to prove ownership . The ORG considered that the parties had had a duty to declare the sale and that their failure to do so meant that the DATE time - limit was no longer applicable . The authorities ' right of pre - emption , which was no longer subject to a time - limit , had thus become “ permanent ” .

The ORG also found that the relevant authority had given valid reasons for finding that there was a legitimate public interest in the acquisition of the work ( in particular , the fact that there were no major works by PERSON in the ORG 's collections and the need to protect the public interest from unfair conduct by the parties ) . In addition , it considered that the fact that the ORG had twice declined to exercise its right of pre - emption in DATE was irrelevant as what was in the public interest had to be assessed in the light of the current position and requirements . In that regard it observed that not all the information needed for the purposes of identifying the owner of the painting had been made available to ORG , which had thus not been in a position until DATE to decide in the light of all the facts whether to exercise its right of pre - emption .

The ORG further found that , although the applicant 's nationality had been one of the factors the Ministry had taken into account when deciding whether to exercise its right of pre - emption , it had not been the main factor .

As regards the applicant 's claim for compensation for the failure to revise the value of the painting , the ORG held that LAW no . DATE conferred no discretion on the authorities since it provided , inter alia , that they had to pay the owner of the work only the agreed price stipulated in the deed of transfer , even in the event of pre - emption under section DATE ( which refers to section CARDINAL ) . The ORG found , however , that the applicant could have asked for the value of the painting to be revised by bringing an action in damages in the ordinary civil courts .

As to the applications concerning the failure to reply to the applicant 's request of CARDINAL DATE , the ORG considered that they were no longer relevant in view of the pre - emption order made on DATE .

Lastly , the ORG declared the constitutional issues raised by the applicant manifestly ill - founded as in the instant case the exceptional nature of the work and the improper conduct of the parties had justified extending the right of pre - emption indefinitely , which had the effect of restricting the property right .

The applicant lodged an appeal with the Consiglio di Stato . Among other things , he argued that the administrative courts had no jurisdiction in the instant case as the authorities had exercised powers which they did not possess and had failed to exercise properly those they did possess .

In a judgment of CARDINAL DATE the PERSON dismissed the appeal and upheld the judgment of the ORG in its entirety . It held that the instant case related to a defective declaration , not a failure to make a declaration , and that it was within the jurisdiction of the administrative courts because it concerned the exercise of existing powers . It went on to confirm that since the DATE declaration did not contain all the essential information required by LAW no . CARDINAL of DATE – notably the identity of all the contracting parties – the authorities were entitled to exercise their right of pre - emption under LAW of PERSON no . DATE at any time , that right being subject to a limitation period only if a fresh declaration were made in accordance with the law . The PERSON also held that the applicant could not have acquired the painting definitively by adverse possession .

The PERSON considered that the authorities had not erred in considering the applicant to be the person on whom they should serve the pre - emption order and that in the present case the right of pre - emption of the authorities was different from the CARDINAL existing under the general law . It had amounted to an actual expropriation measure , the transfer of the work being merely the condition allowing the authorities to expropriate it lawfully . The PERSON held as follows :

“ Therefore , even acknowledging that , as the appellants maintain , Mr GPE had purchased the painting from Mr PERSON as Mr PERSON 's indirect agent , the fact remains that it is the latter 's position which is affected in the final analysis by the agreement signed .

The administrative authorities thus committed no error of fact as regards the identification of the real purchaser on whom the order announcing their intention of exercising their right of pre - emption had to be served , as well as on PERSON ...

Further , the fact that the right of pre - emption provided for in LAW no . DATE has to be exercised against the real owner , and in any event against the end purchaser in a line of transactions complicated by the intervention of an agent , is also closely linked to the special nature of pre - emption ...

Pre - emption , as provided for in sections CARDINAL et seq . of Law no . CARDINAL ... , does not operate in the same way as the civil - law transaction of the same name ... , so that the mechanism by which the right of pre - emption is actually exercised must therefore be considered as belonging to the more general category of measures of dispossession ( in respect of which the deed of transfer is merely a pre - condition for the exercise of the right of pre - emption ) . The validity of the transfer is not therefore a decisive factor , given that the exercise of the right of pre - emption does not have the effect of substituting the authorities for the vendor in negotiations between individuals , but rather the – opposite – effect of annulling the sale and constituting an acquisition ...

... it is ... rather an actual act of expropriation , which can concern only the real owner of the property , this being the only person against whom the act of dispossession can be validly exercised ... ”

“ ORG , ORG , a voler ritenere , come pretendono gli appellanti , che il GPE abbia acquistato il dipinto dal PERSON mandatario senza rappresentanza del Beyeler , è pur sempre a quest'ultimo che devono ricondursi gli effetti finali del concluso contratto .

E ' da escludere , pertanto , che vi sia stato errore di fatto da parte dell'Amministrazione relativamente alla individuazione del soggetto effettivo acquirente e nei cui confronti andava esercitata la prelazione ed PERSON andava notificato il relativo decreto , PERSON ...

D'altra parte , che la prelazione di cui all'art . CARDINAL della legge n. CARDINAL/CARDINAL debba esercitarsi nei confronti del proprietario effettivo e comunque del destinatario finale di una fattispecie acquisitiva complessa ORG è il mandato , si ricollega anche alla ... particolare natura dell'istituto .

GPE , di cui all'art . CARDINAL e segg . della legge indicata ... non opera alla stregua dell'omonimo istituto civilistico ... , sicché il provvedimento , con cui , in concreto , si esercita la prelazione deve essere ricondotto alla più generale ORG degli atti ablatori ( rispetto PERSON negozio di alienazione costituisce mera condizione legittimante del potere ) , con la conseguenza che non assume valore determinante la validità dell'atto di alienazione presupposto , dal momento che nessuna sostituzione dell'amministrazione PERSON alienante nel negozio posto in essere da privati avviene col provvedimento della prelazione dal quale , anzi , ORG un effetto propriamente costitutivo ( acquisitivo ) discende un ( ulteriore ) effetto caducatorio del negozio di alienazione medesima ...

... trattasi ... piuttosto di un vero e proprio atto espropriativo , che non puó non riguardare se non il proprietario effettivo del bene stesso , ORG a poter essere utilmente inciso dall'atto ablativo ... ”

The PERSON observed further that the conduct of the authorities could not be considered to be contradictory : as the ORG had already pointed out , the authorities had approached the matter carefully and ultimately had not decided to exercise their right of pre - emption until they were certain , on the basis of documentation in their possession , that the painting had been purchased on behalf of PERSON and paid for by him . The PERSON also pointed out that the nationality of the applicant had increased the ORG 's determination to exercise its right of pre - emption .

The PERSON also held that the issues raised by the applicant as to the unconstitutionality of DATE , CARDINAL and DATE of Law no . DATE were manifestly ill - founded . Those issues concerned in particular LAW , which DATE among other things – the non - discrimination principle , LAW , which guarantees the right of property and , lastly , LAW , which establishes the principle of sound public administration . As to LAW , the PERSON observed that in the instant case the special nature of the situation resulting from an invalid declaration of sale justified different treatment . As regards LAW , it considered – with regard to transfers of title to protected works DATE that private individuals had duties of good faith and transparency . Lastly , as regards LAW , it found that the ORG 's delay in exercising its right of pre - emption should be attributed to the improper conduct of the parties .

The applicant then appealed to ORG , arguing that his case came within the jurisdiction of the ordinary civil courts , not the administrative courts . He submitted again that sections CARDINAL , DATE and DATE of Law no . DATE were unconstitutional in the light of Articles CARDINAL and CARDINAL of LAW .

In an order of CARDINAL DATE ORG held that the constitutionality issues did not appear to be manifestly ill - founded .

ORG ruled firstly that if the authorities could exercise their right of pre - emption at any time the seller 's rights would always be restricted , thus creating continual uncertainty as to the legal position with regard to the work . ORG observed in that regard that , even if the first declaration had been invalid , the right of pre - emption could nonetheless have been exercised once the authorities had received all the information required under the statute ( pointing out in that connection , as the PERSON had already noted , that ORG had not exercised its right of pre - emption until it was certain that the painting had been purchased on behalf of PERSON and in consideration of a sum of money paid by him ) . The authorities had not been certain of that until the ORG had received the bank statements relating to the DATE sale . ORG noted that the pre - emption order had been issued and served on the parties DATE .

ORG then found that even supposing that the pre - emption order did amount to an actual expropriation measure , as the Consiglio di Stato had said , the applicant had been treated differently from anyone else whose property had been expropriated . Compensation to which owners of property over which the ORG exercised its right of pre - emption were entitled was calculated on a different basis from the one used to calculate compensation payable in other cases of expropriation ; furthermore , there was no right of judicial review . Although the agreed price stated in the transfer document might constitute sufficient compensation where the pre - emption occurred within DATE period laid down by the statute , that was no longer true where the right of pre - emption was exercised DATE , as had happened in the instant case . The applicant had also been treated differently from a person who had failed to make a declaration of transfer . The court considered , having regard to section ORG ) of PERSON no . DATE , that where , in the latter type of case , it was impossible to determine the agreed price , the ORG would have to pay the owner compensation equivalent to the market value of the work .

It observed , lastly , that if ORG held that the provisions in issue were unconstitutional , one of the consequences would be that the ordinary courts dealing with such cases would have jurisdiction and the applicant would be able to challenge the impugned decision in those courts and rely on the NORP authorities ' delay in exercising their right of pre - emption .

ORG stayed the proceedings before it and ordered the case to be referred to ORG .

In a judgment of DATE ORG declared the constitutionality issue raised by ORG unfounded . It stressed , firstly , the special nature of the provisions of PERSON no . DATE , which were intended to “ protect assets related to the fundamental interests of the cultural life of the country ” . The special nature of such assets had accordingly justified the authorities ' being granted different , more restrictive powers than those they had in respect of other property . Consequently , there had been no discriminatory treatment as the property was different in kind from that concerned in ordinary expropriation proceedings . Nor was there any difference in treatment between cases where an invalid declaration was made and cases where the sale had not been declared , as , even in the latter case , the compensation payable would be the price agreed at the time of the sale . If the agreed price on an undeclared sale was not known , it had to be determined on the basis of any available evidence .

Furthermore , as regards the appropriate price payable by the ORG when it exercised its right of pre - emption late , ORG reiterated that that issue could not be decided on the basis of the criteria used to determine the amount of compensation in ordinary expropriation proceedings , as the proceedings were of a different kind and the amount paid in situations such as the one in the instant case was , in any event , dependent on a contractual element that had been freely decided by the parties . It followed from this latter point that , under normal circumstances , namely in cases where the right of pre - emption was exercised within the prescribed time - limit , the price , despite being less than the market value , would nonetheless not be derisory or symbolic . Lastly , ORG noted that LAW no . DATE was to be found in the part of the statute dealing with “ penalties ” . A crucial factor was , therefore , the fact that the owner 's economic loss was a consequence of an irregularity or of a failure on his part to declare the sale of the property , thus rendering the sale nugatory and entitling the ORG to exercise its right of pre - emption at any time . However , as it did not amount to a real criminal or administrative penalty , it was right that the authorities should have a discretion to exercise their right of pre - emption at any time . Moreover , individuals could rectify the position at any time by filing a late declaration .

Following the decision of ORG , ORG dismissed the applicant 's appeal in a judgment of DATE , deposited with the registry on DATE . It held that the administrative courts had jurisdiction in the case and that , both as regards the exercise by the ORG of its right of pre - emption at any time and the allegation that service of the pre - emption order had been defective , the case concerned issues that related to the way in which the authorities had exercised their powers , not to the exercise of powers which they did not possess .

Among other things , ORG considered that , in the absence of any legal provision in that respect , it would have been arbitrary for the compulsory DATE time - limit to run from the time at which the ( unspecified ) departments of the authorities had learnt of the sale on the basis of undetermined factors or circumstances . However , ORG found that the right of pre - emption had properly been ruled to be exercisable at any time and against anyone in possession of the property ( reiterating that the authorities had not exercised their right of pre - emption until they had been certain that the painting had been purchased on behalf of the applicant ) . Moreover , it pointed out that the argument concerning the reference in section CARDINAL to section DATE ( which , inter alia , provided for a DATE time - limit ) was irrelevant as section DATE contained procedural provisions that also applied to ORG pre - emptions that were not subject to any time - limit , such as the rule that the ORG acquired title to property when the pre - emption order was made or the rule that the provisions of a sale agreement did not bind the ORG .

During TIME CARDINAL DATE the painting , which was still in ORG , was stolen in an armed robbery along with CARDINAL other paintings . It was found by the carabinieri and NORP police on DATE .

Under LAW , the sale of movable property through an agent acting in his own name but on behalf of his principal ( indirect agency ) has the effect of automatically transferring title to the property to the principal , who can then claim it from the agent .

In respect of works of art which are of interest for the artistic heritage of the nation , transfers and other legal transactions are subject to certain conditions . LAW no . CARDINAL of DATE provides that the owner or person in possession , in any capacity whatsoever , of property considered to be of cultural or artistic interest within the meaning of section CARDINAL must declare to the Ministry responsible for works of cultural interest ( from DATE ORG – Ministero per i beni culturali e ambientali ) any transaction , whether for consideration or by way of gift , transferring full or partial title to or possession of the work ( “ PERSON chiunque a qualsiasi titolo detenga una delle cose che abbiano formato oggetto di notifica a PERSON degli artcioli precendenti è tenuto a denunziare PERSON per CARDINAL nazionale ogni atto , a titolo oneroso o gratuito , che ne trasmetta , in tutto o in parte , la proprietà o la detenzione ” ) .

Sections CARDINAL(CARDINAL ) and CARDINAL ) of PERSON no . DATE provide that the ORG may exercise a right of pre - emption over the work within DATE from the date of the declaration referred to above , at the agreed price as set out in the deed of transfer if the transfer is for value ( section CARDINAL(CARDINAL ) : “ Nel caso di alienazione a titolo oneroso , il PERSON per l'educazione nazionale ha facoltà di acquistare la cosa al medesimo prezzo stabilito nell'atto di alienazione ” ; section CARDINAL ) : “ Il diritto di prelazione deve essere esercitato nel termine di mesi due dalla data della denuncia ” ) . In the event that the work of art should be sold at the same time as other works for an aggregate price , that price is automatically determined by the Minister or , if the seller contests the price , by a board composed of CARDINAL members , CARDINAL of whom is appointed by the seller ( section FAC ) ) .

DATE . Section CARDINAL provides that the owner or person in possession of such a work must declare any intention to export it . In that event the ORG may exercise a right of pre - emption over the work within DATE from the date of the declaration , at a price determined by the ORG if the work is to be exported to a member ORG of ORG and for the value indicated in the declaration in other cases ( section CARDINAL ) .

Section CARDINAL also provides that “ transfers , agreements and other legal transactions made in breach of the provisions laid down in this PERSON or in non - compliance with the terms and conditions prescribed shall automatically be void ” and that the ORG may still exercise its right of pre - emption under sections CARDINAL and DATE ( section CARDINAL : “ Le alienazioni , le convenzioni e gli atti giuridici in genere , compiuti contro i divieti stabiliti dalla presente legge o senza l'osservanza delle condizioni e modalità da esse precritte , sono nulli di pieno diritto . MONEY salva la facoltà del PERSON per l'educazione nazionale di esercitare il diritto di prelazione a PERSON degli artt . CARDINAL e CARDINAL ” ) .

The statute also provides that , until the adoption of an implementing decree ( none has yet been adopted ) , the provisions of LAW no . CARDINAL of DATE shall continue to apply ( section CARDINAL ) . Article CARDINAL of the royal decree prescribes , inter alia , the content of the declarations referred to above , for example , they must contain a brief description of the subject matter of the contract , the type and the terms and conditions of transfer , the names , addresses and signatures of the contracting parties and an indication of the date and place in GPE at which the property sold shall be delivered to the purchaser . Under that provision , a declaration which does not contain all that information in full and precise terms shall be considered to be null and void .

Section CARDINAL of Law no . DATE prescribes a prison sentence of DATE and a maximum fine of ITL CARDINAL for , inter alia , failure to make the declaration prescribed by section CARDINAL .

Lastly , sections CARDINAL et seq . of the royal decree govern expropriations of movable and immovable property and refer in a number of places to PERSON no . CARDINAL of DATE relating to expropriations in the public interest . In that context LAW provides that a public - interest declaration is made by ORG after ORG ( Consiglio superiore per l'antichità e le belle arti ) has given its approval and observations have been received from the PERSON .

LAW and Preventing the Illicit Import , Export and Transfer of Ownership of Cultural Property was signed in GPE on DATE and came into force on DATE ( in GPE on DATE ) . Article CARDINAL provides :

“ The States Parties to this Convention recognise that for the purpose of the Convention property which belongs to the following categories forms part of the cultural heritage of each State :

( a ) cultural property created by the individual or collective genius of nationals of the ORG concerned , and cultural property of importance to the ORG concerned created within the territory of that ORG by foreign nationals or stateless persons resident within such territory ;

( b ) cultural property found within the national territory ;

( c ) cultural property acquired by archaeological , ethnological or natural science missions , with the consent of the competent authorities of the country of origin of such property ;

( d ) cultural property which has been the subject of a freely agreed exchange ;

( e ) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property . ”

Mr PERSON applied to ORG on DATE . He complained that there had been a violation of LAW No . CARDINAL and of ORG DATE on the ground that ORG had exercised a right of pre - emption over a PERSON painting which , he alleged , he had lawfully purchased .

The Commission declared the application ( no . CARDINAL ) admissible on DATE . In its report of CARDINAL DATE ( former LAW ) , it expressed the opinion

( a ) that there had not been a violation of LAW No . CARDINAL ( CARDINAL votes to CARDINAL ) ;

( b ) that there had not been a violation of LAW ( CARDINAL votes to CARDINAL ) ; and

( c ) that there had not been a violation of LAW ( unanimously ) .

The full text of the ORG 's opinion and of the CARDINAL dissenting opinions contained in the report is reproduced as an annex to this judgment .


The applicant , who qualified as a doctor in GPE , worked as a general practitioner ( “ GPE ” ) in GPE , GPE from DATE until the events described below . In DATE he developed a depressive illness as a result of financial pressures .

On DATE an incident occurred when a patient , PERSON , then aged DATE , was consulting the applicant at his surgery . The applicant had been treating PERSON for , inter alia , pelvic infection , irritable bowel syndrome and lower back pain , and on DATE in question examined her internally and asked her to perform a back exercise on the floor ( referred to by PERSON as “ the cat ” ) . On DATE Ms H complained to the police that the applicant had indecently assaulted her during a consultation at his surgery on DATE , and on a number of other occasions over DATE . She alleged , inter alia , that on DATE the applicant had conducted an improper examination on the couch , inserting his fingers into her anus and vagina simultaneously while pressing his erection against her , and that he had rubbed her vagina while she , naked from the waist down , was carrying out the “ cat ” exercise on the floor . On DATE PERSON , wearing a concealed tape recorder fitted by the police , visited the applicant and complained about the incident in question . The relevant parts of the transcript of the tape recording of this conversation read as follow :

“ O : ... Are you coming just for a check - up or there 's a new problem you want to tell me about ?

H : Erm I 've come to ask you erm a few questions .

O : Surely .

H : Erm it 's about my internal examinations .

O : Mm .

H : Erm when you , I like feel a bit funny about when you do them . Erm you do the front and then you do the back ,

O : Mm .

H : and then sometimes you do the front as well and I feel like it 's causing me to -

O : Infection .

H : Yeah .

O : No , does n't because I use different fingers to start with . [ Further discussion about likelihood of examinations causing infection ]


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

The first and second applicants were born in DATE and DATE and live in GPE and GPE respectively . The applicant company is based in GPE . The first applicant is the editor - in - chief of the applicant company and the second applicant is a journalist .

On DATE a student was allegedly raped at a party which was held to celebrate a local baseball team 's victory in the NORP championship . On DATE the applicant company published an article in the magazine ORG about this incident entitled “ A student raped at the baseball party ” . The content of the article was the following :

“ A girl studying in PERSON [ name of the city ] was raped at the party to celebrate the victory of GPE [ name of the team ] DATE . Several players of the team participated in the rape .

The folk high school of PERSON confirms that their student was a victim of rape at the party to celebrate the victory of GPE held on DATE .

The girl had been invited by the gold - medal team to attend “ an after party ” in a hotel in PERSON According to the information received by ORG , the rapist was CARDINAL of the players of the team but there were also other players in the hotel room , some of them holding the victim , some of them watching . The rape was interrupted when CARDINAL of the players of the team entered the room and ordered the others to stop the rape .

The student girl is an adult . She has given a written statement about the incident but does not wish , at least for the time being , to report the incident to the police .

The folk high school has reported the incident to the city officials , to the leaders of the baseball team and to its main sponsor .

GPE won the second consecutive gold medal in the NORP championship league DATE . The team defeated PERSON straight CARDINAL - CARDINAL . ”

The article did not include any photographs . Moreover , the statement “ Baseball winning party ended in a rape ” was printed on the cover of the magazine .

The players had not been contacted for their comments before the article in question was published but the magazine published in its next issue a reply given by them in which they denied being guilty of any crime .

The content of the article was based on a statement given by the victim to the folk high school of PERSON on the following morning and which had been corroborated by CARDINAL witnesses . Several other persons had also made statements supporting the victim 's account of the facts .

The police started to investigate the alleged rape after the article had been published . According to a press release issued by the police on DATE , the victim of the alleged rape was not able to identify the offender or the offenders nor was she able to clarify the events in such detail that the offence could be attributed to a certain person or persons . Consequently , ORG ( keskusrikospoliisi , centralkriminalpolisen ) interrupted the pre - trial investigation .

On DATE the public prosecutor brought charges for aggravated defamation against the first applicant , the editor - in - chief of the applicant company , and the second applicant , the journalist . The baseball team pursued a compensation claim against all the applicants , which was joined to the criminal charges .

NORP On DATE ORG ( käräjäoikeus , tingsrätten ) , after an oral hearing , sentenced the first and second applicants to pay DATE - fines , amounting to CARDINAL and CARDINAL ( ORG ) respectively , for aggravated defamation . Moreover , all the defendants in the domestic proceedings were jointly and severally ordered to pay the baseball team ORG CARDINAL plus interest for non - pecuniary damage as well as for costs and expenses . The court found that the statement made by the rape victim had not been reliable since she had not brought the issue to the police 's attention . The local public had not been aware of the incident until the article in question was published in the mass media . All members of the baseball team had suffered non - pecuniary damage due to the false accusations published in the article . The court concluded that the accusations were so serious that their accuracy should have been verified very carefully , which the applicants had failed to do . As to the compensation awarded , the court noted that the defamation was directed at all players of the team and that they could receive compassionate support from each other . The court took this into account when reducing the amount of compensation awarded for their suffering .

On DATE the applicants appealed to ORG ( hovioikeus , hovrätten ) , claiming that they had had strong reasons to believe that the accusations were true . If the same evidence had been presented in criminal proceedings , it would have led to the conviction of the offender . The police had been aware of the incident but had not done anything even though rape was an offence that always required ex officio public prosecution . The applicants claimed under LAW that their right to freedom of expression had been violated .

ORG held an oral hearing from DATE . On DATE it upheld ORG judgment . ORG stated the following :

“ Freedom of expression and protection of private life and honour are fundamental rights . According to LAW , everyone 's honour is guaranteed . Freedom of expression and protection of honour are also human rights protected by LAW . Therefore , when interpreting the extent of these fundamental rights , the case - law of ORG must also be taken into account .

According to LAW , the exercise of freedom of expression may be subject to such restrictions and penalties as are prescribed by law and are necessary in a NORP society , for the protection of the reputation of others . ORG has , inter alia , in its judgment GPE and ORG v. GPE of DATE taken a position with respect to the freedom of expression of journalists , stating that the press must not overstep certain bounds in respect of the rights and the reputation of the others , although journalistic freedom also covers possible recourse to a degree of exaggeration , or even provocation . Similarly in the case PERSON and GPE v. GPE of DATE .

According to LAW paragraph CARDINAL of LAW , everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law . ORG has found in the case PERSON and GPE v. GPE of DATE that the ordinary journalistic obligation to verify a factual allegation required that the journalists should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation , given that the more serious the allegation , the more solid the factual basis had to be . In the case “ NORP - Trend ” ORG v. GPE of DATE the above - mentioned court stated that , as the case had only reached an early stage of the criminal proceedings , particular care had to be taken to protect a person against “ trial by the media ” and to give effect to the presumption of innocence .

It must be decided on the one hand whether the honour of [ the players ] has been violated and on the other hand , whether there were sufficient reasons to restrict [ the applicants ' ] freedom of expression .

The article in question mentions that some of the players of the GPE were guilty of rape . As it was mentioned in the article that the rape took place at the party to celebrate the victory of GPE , one can reasonably think that it was especially the players of the winning team that were involved . [ The second applicant ] has confirmed during the ORG proceedings that by players he had meant the players of the winning team .

The article was written in such a manner that any one of the players could have been guilty of a serious crime . The maximum sanction for the alleged crime is DATE imprisonment . Before the publication of the article , not even the pre - trial investigation had started . Labelling someone guilty before a matter has been resolved by a court of law would mean rendering a premature public judgment , the consequences of which could be difficult to repair . Also and from the general point of view , taking into account ultimately the ability of the courts to function , the public must not have false expectations or misunderstandings ( for example ORG ) . The allegation has violated [ the players ' ] right to the presumption of innocence . Moreover , the allegation of having committed a serious crime is an act that is conducive to causing damage and suffering or contempt . On the above - mentioned grounds the ORG finds , like ORG , that [ the players ' ] honour has been violated .

[ The applicants ] have alleged in ORG that the police of PERSON had known about the rape but had not taken any measures . Concealing a serious crime is an issue of social relevance about which the press must be able to write . However , the article does not mention that the police tried to conceal the matter or that the folk high school or anybody else had even informed the police . On the contrary , the article mentioned that the alleged victim did not want to report the incident to the police . Even though according to the article the folk high school had reported the incident to the city officials , to the management of the baseball team and to its main sponsor , this part of the article does not , bearing in mind the possibility of the said instances to act in the matter , show any intention to conceal the matter .

On the above - mentioned grounds , ORG finds that the essential function of the press in the core area of freedom of expression and as a guardian against misuse of power in a NORP society is not at stake in the present case , even though the pre - trial investigation into the alleged rape was started only after the publication of the article .

[ The first and second applicants ] have not demonstrated that they had sufficient reasons to believe that the allegations made in the article were true . They have stated that they did not even try to contact [ the victim ] , the players or their team . [ The first and second applicants ] have declined to reveal their sources . By not revealing their sources , they have taken the risk of possibly being convicted for defamation . As stated above , there is no indication that the alleged rape was commonly known in PERSON before the publication of the article . By relying solely on the statement made by the [ victim ] , in which the perpetrators were not identified in any other way than that the rape had taken place at the winners ' party , [ the first and second applicants ] could not have reasonably considered the statement as being true . The statement was made by private persons and in order that the folk high school could later demonstrate that it had given sufficient instructions in the matter . The statement had not been written on [ the victim 's ] initiative . One could not reach such a conclusion on the basis of the statement that only some of the players were guilty of rape . [ The first and second applicants ] have failed to verify sufficiently that the information about the players being guilty of rape was true , although they had had the possibility to clarify the issue . The nature and the seriousness of the crime required that the article was particularly accurate .

There are no reasons to estimate that [ the players ' ] right to honour would be lesser than [ the first and second applicants ' ] right to freedom of expression . Restricting [ the first and second applicants ' ] right to freedom of expression was necessary in order to protect [ the players ' ] honour and their presumption of innocence . .... ”

On DATE the applicants applied for leave to appeal to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds for appeal relied on before ORG .

On CARDINAL DATE ORG refused leave to appeal .

Chapter DATE ( CARDINAL/CARDINAL ) , Article CARDINAL , of LAW ( rikoslaki , strafflagen ) reads as follows :

“ A person who ( CARDINAL ) spreads false information or a false insinuation about another person so that the act is conducive to causing damage or suffering to that person , or subjecting that person to contempt , or ( CARDINAL ) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph ( CARDINAL ) , shall be sentenced for defamation to a fine or to imprisonment for a maximum period of DATE .

Criticism that is directed at a person 's activities in politics , business , public office , public position , science , art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs ( CARDINAL ) and ( CARDINAL ) . ”

Article CARDINAL of the same Code provides that if , in the defamation referred to in DATE , the offence is committed by using the mass media or otherwise by making the information or insinuation available to a large number of people , the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for a maximum period of DATE .

Section CARDINAL of the Freedom of LAW ( painovapauslaki , tryckfrihetslagen ; Act no . CARDINAL/CARDINAL ) , as in force at the relevant time , provided that the provisions of LAW applied to the payment of compensation for damage caused by the contents of printed material .

LAW , section CARDINAL , of LAW ( vahingonkorvauslaki , skadeståndslagen , Act no . CARDINAL , as amended by LAW no . CARDINAL ) stipulates that damages may also be awarded for distress arising , inter alia , from an offence against liberty , honour , domestic peace or from another comparable offence . Under LAW , LAW , of the said LAW , damages shall constitute compensation for personal injury and damage to property . LAW provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury , as well as loss of income and maintenance and pain and suffering .