Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE . He is currently detained in FAC .

On DATE the applicant was arrested in GPE and charged with trafficking large amounts of drugs from GPE .

On DATE the ORG ( FAC ) remanded him in custody . The decision was upheld on DATE by ORG ( PERSON ) .

In its decision to detain the applicant , ORG relied on a reasonable suspicion that the applicant had committed the aforementioned offence . It attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on the applicant and to the risk that he would attempt to obstruct the proceedings .

The applicant ’s pre - trial detention was subsequently extended by decisions of the ORG given on DATE ( upheld by ORG ( Sąd Apelacyjny ) on DATE ) , on DATE , on DATE ( upheld by ORG on DATE ) , on DATE and on DATE ( upheld by ORG on DATE ) .

In its decisions extending the applicant ’s detention , ORG observed that it had been necessary to extend the pre - trial proceedings in order to obtain translations of certain relevant case documents from NORP into NORP , to hear new witnesses and to supplement the original charges . It took into account the fact that the applicant had a handicapped mother , but concluded that she had been receiving adequate care and , therefore , that there were no special reasons , family - related or other , militating against the applicant ’s detention .

On DATE the bill of indictment was lodged with ORG .

On DATE the ORG dismissed the applicant ’s request for release , finding that the initial grounds for his detention continued to apply .

On DATE the ORG extended the applicant ’s detention , restating the grounds initially invoked for the detention order . It emphasised that the offence with which the applicant had been charged had been committed in an organised criminal group . Consequently , the court took the view that detention on remand constituted the only measure capable of securing the proper conduct of the proceedings .

The applicant ’s appeal against the decision of ORG was dismissed by the same court on DATE .

On DATE , DATE and on further unspecified dates ORG again extended the applicant ’s detention . In its decision of DATE the court held that another extension of the applicant ’s detention was necessary in order to allow the trial court to examine additional evidence and hear more witnesses . The court moreover observed that CARDINAL of the co - accused had also been charged in another set of proceedings and remained at the disposal of ORG , which made it necessary to have him escorted from there to each of the hearings before ORG . The applicant ’s appeal against this decision was dismissed on DATE .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

On DATE the ORG upheld the lower court ’s judgment .

The applicant lodged a cassation appeal and the proceedings before ORG are currently pending .

On DATE the applicant was committed to FAC .

On DATE he was transferred to FAC .

From DATE to DATE the applicant was held in FAC .

On DATE he was transferred back to FAC . He remained there until DATE .

On DATE the applicant was once more transferred to ORG and detained there until DATE .

DATE onwards the applicant was detained in FAC .

Following his conviction , on DATE he was transferred to ORG to serve his term of imprisonment . He remained there until DATE , with the exception of the period from DATE to DATE when he was detained in FAC .

On DATE the applicant was transferred to FAC where he is currently detained .

The parties gave partly differing accounts of the conditions of the applicant ’s detention in the above - mentioned establishments .

Upon his arrest on DATE the applicant was committed to FAC where he was initially held in a cell of an unspecified size .

On DATE , in FAC , he was placed with CARDINAL other detainees in a cell of QUANTITY m² . The free area in the cell , furniture and other equipment excluded , amounted to CARDINAL m² per person .

Subsequently , on an unspecified date the applicant was transferred to a cell which measured CARDINAL ORG and was shared by CARDINAL detainees . The cell in question was furnished with CARDINAL bunk beds , CARDINAL tables , CARDINAL stools and a number of cupboards . A toilet cubicle was also inside the cell . The free area in the cell was PERCENT per detainee .

From DATE to CARDINAL DATE the applicant was held in FAC . Despite being a non - smoker , he was detained in a cell designated for smokers .

In a letter of CARDINAL DATE the applicant informed the ORG that he had been continuously held in a cell where the statutory requirement of CARDINAL m² of living space per prisoner had not been respected . The toilet was not properly separated from the rest of the cell and the conditions were unhygienic .

In a letter of DATE the applicant informed the ORG that from DATE to CARDINAL DATE the authorities of ORG had placed him together with CARDINAL other detainee in a cell where the living space per detainee amounted to CARDINAL m² .

In the same letter he further stated that on DATE he was moved to cell no . CARDINAL in ward B where the requirement of CARDINAL m² of living space per prisoner had been respected and the conditions of his detention were more or less satisfactory .

The Government supplied the following details concerning the conditions of the applicant ’s detention in each establishment .

As regards FAC , the Government acknowledged that the applicant had been temporarily placed in cells where the living space per prisoner had amounted to CARDINAL m² . The cell space in different cells occupied by the applicant ranged from QUANTITY to QUANTITY per prisoner . The period during which the applicant had been detained in cells where the living space was less than CARDINAL m² per prisoner amounted to a total of DATE .

The Government explained that throughout his detention the applicant had been entitled to a TIME DATE walk in the remand centre ’s courtyard and to take part in various sports activities . The sanitary conditions of FAC were adequate , the cells were properly lit and equipped with all necessary furniture .

With regard to ORG , the Government also conceded that the applicant had been at times held in cells where the living space per prisoner amounted to CARDINAL m² . He was initially placed in a cell with non - smokers but at his own request he was later moved to a different cell . In this remand centre also the applicant was entitled to a TIME DATE walk in the remand centre ’s courtyard . The overall sanitary conditions of the remand centre were satisfactory and the applicant had been provided with the necessary products for his DATE hygiene .

In a letter of CARDINAL DATE the ORG submitted that the applicant was being detained in ORG , in a cell where the statutory minimum standard of CARDINAL m² per person was respected .

The applicant lodged a complaint with the ORG , complaining about the conditions of his detention in FAC . He did not lodge a similar complaint in respect of FAC because , as he explained , such a complaint would have had no prospects of success and moreover he had feared persecution by the prison authorities of ORG .

NORP The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights on account of the conditions of his detention .

The applicant submitted that during his stay in ORG he had been entitled to CARDINAL family visit per month . During the first visit he was allowed to see his common - law wife in person and in the presence of a police officer . During all subsequent visits he was separated from his visitors by a perspex partition and could only communicate with them via internal phone . He was only allowed to receive CARDINAL visitor at a time .

In DATE the applicant ’s wife was refused the right to see him . According to the applicant ’s submissions , the authorities had explained their refusal by the fact that a personal search performed on the applicant ’s wife at the remand centre ’s entrance had allegedly revealed a prohibited “ kite ” message ( gryps ) and some unauthorised medication . The applicant maintained that the authorities had unfairly mistaken his common - law wife ’s personal memo note for a prohibited message . He also explained that the medication she had been carrying had been her own , ordinary medication for blood circulation problems . He moreover pointed out that during the visit scheduled for that particular day he would in any event have been separated from his wife by a perspex partition , a circumstance of which both the authorities and his wife had been aware .

In FAC the applicant was entitled to receive visitors once DATE . He was usually separated from his visitors by a perspex partition and could communicate with them via internal phone .

The applicant submitted that on numerous occasions his commonlaw wife and other members of his family had filed repeated requests to be allowed to see him physically in person but that all these requests had been refused . He maintains that he was allowed to meet his family in a manner allowing for direct physical contact only on CARDINAL occasions .

From the copies of documents provided by the applicant it can be seen that the requests filed by various members of his family on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and on CARDINAL DATE were all refused by ORG , usually by handwritten notes made on their requests DATE “ permission refused ” ( “ nie wyrażam zgody ” ) .

As a result of a request filed on DATE , on DATE the court decided to “ only exceptionally ” allow the applicant ’s common - law wife to see him without their being physically separated ( “ sąd wyjątkowo wyraża zgodę na widzenie umożliwiające kontakt bezpośredni ” ) .

Also , the applicant ’s own request to be allowed to have direct physical contact with his visitors , filed on DATE , was refused by the court on DATE .

According to a certificate issued on DATE by the authorities of ORG , provided by the applicant , up until DATE he had been allowed to see :

- his common - law wife CARDINAL times : during CARDINAL visits they had been separated by a perspex partition and on CARDINAL other occasions they had been allowed to have direct physical contact ;

- his son PERSON times : on CARDINAL occasions with the perspex partition and CARDINAL occasions with direct physical contact ;

- his daughter PERSON once , being separated from her by the perspex partition .

The Government pointed out that during his stay in ORG the applicant had been allowed to see his family CARDINAL times , on CARDINAL occasions in a manner allowing for direct physical contact . Nearly all requests filed by the applicant ’s family members had been allowed . The visits took place on :

- CARDINAL and DATE ;

- CARDINAL , DATE , DATE , DATE ;

- CARDINAL , DATE , DATE , DATE ;

- CARDINAL and DATE ;

- CARDINAL and CARDINAL DATE ;

- CARDINAL , DATE ;

- CARDINAL , CARDINAL , DATE and DATE ;

- CARDINAL and DATE DATE ;

- CARDINAL , DATE , DATE ;

- CARDINAL and DATE ;

- CARDINAL August DATE ;

- CARDINAL and DATE ;

- DATE ;

- DATE ;

- DATE ;

- DATE ;

- DATE ;

- CARDINAL and CARDINAL May DATE ;

- CARDINAL June DATE ;

- DATE ;

- CARDINAL DATE ;

- CARDINAL DATE DATE ;

- CARDINAL October DATE ;

- CARDINAL DATE ;

- DATE and DATE .

During his stay in FAC from DATE , the applicant was not allowed to make any telephone calls and did not receive any visits .

On DATE ORG refused to grant the applicant ’s request for release on probation ( warunkowe przedterminowe zwolnienie ) . The court held that the applicant could not be given a positive socio - criminological forecast and that his resocialisation process had not been completed yet . It noted that the applicant ’s behaviour in detention had been proper , but also observed that he had been a declared member of the prison subculture in violation of prison regulations , that he had not shown a critical attitude towards his crime and , lastly , that the end of the applicant ’s sentence was still remote . It recalled that , according to the prevalent jurisprudence , release on probation was a kind of “ reward ” for prisoners who , by their behaviour , had demonstrated that they had made substantial progress in their resocialisation .

On DATE the ORG dismissed the applicant ’s appeal . It restated the reasons invoked for the decision of the lower court . In addition , it considered that the fact that the applicant had never throughout his detention been given a disciplinary penalty and that he had received a CARDINAL so rewards for his behaviour ( nagroda ) could not suffice to conclude that his socio - criminological forecast should be regarded as positive . The court further invoked the applicant ’s membership of the prison subculture , the serious nature of his criminal conviction and his lack of remorse in respect of the committed crime .

A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in GPE and domestic remedies available to detainees alleging that conditions of their detention are inadequate are set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the decision given by ORG in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE ) .

The relevant domestic law and practice concerning the imposition of pretrial detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

The relevant statistical data , recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant ORG materials can be found in the ORG ’s judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL , § DATE and CARDINAL , DATE ) .

Pursuant to LAW , a detainee is allowed to receive visitors , provided that he has obtained a visit permission ( “ zezwolenie na widzenie ” ) from the authority at whose disposal he remains , i.e. an investigating prosecutor ( at the investigative stage ) or from the trial court ( once the trial has begun ) or from the appellate court ( in appeal proceedings ) . A detainee is entitled to a single , onehour long visit per month .

According to paragraphs CARDINAL and CARDINAL , a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions . In practice , there are QUANTITY types of visits : an “ open visit ” , a “ supervised visit ” ( widzenie w obecności funkcjonariusza PERSON ) and a “ closed visit ” .

An open visit takes place in a common room designated for visits . Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact . Several detainees receive visits at the same time and in the same room .

A supervised visit takes place in the same common room but the prison guard is present at the table , controls the course of the visit , may restrict physical contact if so ordered under the visit permission , although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transfer of any forbidden objects .

A closed visit takes place in a special room . A detainee is separated from his visitor by a perspex partition and they communicate through an internal phone .

The relevant extracts from Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on ORG , adopted on DATE , read as follows :

“ Part II Conditions of imprisonment

Contact with the outside world

CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .

CARDINAL ORG law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted .

CARDINAL NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .

CARDINAL.CARDINAL ORG authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so . ”


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

The applicant , ORG banka , a.s . , is a private banking company , limited by shares . It was set up under the laws of GPE in DATE and has its registered office in GPE . The applicant company was represented before the ORG by Mr J. Havlát , a lawyer practising in GPE . The respondent Government were represented by PERSON , their Agent .

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

On DATE the applicant company filed a criminal complaint ( trestné oznámenie ) with ORG . It concerned a transaction involving the forced sale for an allegedly inadequate price by a judicial enforcement officer , via a stock - exchange broker , of shares of a private company for the settlement of an acknowledged debt to the applicant company . It was submitted that the sale had been manipulated in favour of the buyer and that , as a result , the debtor ’s capacity to discharge its other obligations towards the applicant company had been impaired . The complaint was aimed at bringing a criminal prosecution against CARDINAL individuals and securing the shares in question . The applicant company later submitted further information and precisely quantified its claim for damages .

On DATE the investigator set the case aside on the ground that there was no indication that an offence had been committed . The decision indicated that it could be challenged by means of an interlocutory appeal ( sťažnosť ) within DATE of its notification .

The applicant company was informed of the decision of DATE by a letter delivered on DATE . The decision as such , however , was not served on the applicant company at that time .

In DATE the police investigator informed the applicant company ’s representative that he was not entitled to consult the file . The proceedings were at the preliminary investigation stage and the file therefore contained no evidence which could be used in subsequent criminal proceedings . The possibility of inspecting criminal files extended exclusively to files which contained such evidence .

The applicant subsequently unsuccessfully sought service of the decision of DATE and access to the file by making complaints to the public prosecution service at various levels .

On DATE the applicant company lodged a complaint with ORG against the public prosecution service , contending that its measures had denied the applicant company ’s procedural rights as a victim in that the decision of DATE had not been served on the applicant company and the company had not been allowed to consult the file . The applicant company relied , inter alia , on Articles CARDINAL ( § CARDINAL ) and CARDINAL of the LAW and sought that the contested measures be quashed and that its costs and expenses be reimbursed .

In a letter of CARDINAL DATE in response to the applicant company ’s constitutional complaint , ORG acknowledged that the applicant company ’s complaint was justified . The applicant company , in its procedural capacity as victim , had been entitled to be served with the impugned decision and to inspect the file . Concrete measures were being taken with a view to swiftly serving the investigator ’s decision on the applicant company and allowing its representative to inspect the file at any time . In his conclusion , ORG expressed the conviction that the reasons for the applicant company ’s constitutional complaint had thereby fallen away .

On DATE ORG dismissed the complaint as manifestly ill - founded . The decision stated that the investigator had set the case aside because no damage had been caused to the applicant company . Thus , the latter had not acquired the status of victim within the meaning of LAW . Accordingly , no breach of the procedural rights accruing to victims could have occurred in respect of the applicant company . ORG decision was served on the applicant company on DATE .

In the meantime , on DATE the decision of DATE had been served on the applicant company , which had subsequently lodged an interlocutory appeal contesting the investigator ’s factual and legal findings .

On DATE the applicant company ’s legal representative consulted the file . The applicant company subsequently made a substantial submission setting out the reasons for the appeal .

In their observations on the admissibility and merits of the application , the ORG submitted a copy of a decision of ORG of DATE whereby it had dismissed the applicant company ’s appeal as unfounded , holding that despite extensive inquiry no elements had been established which justified a conclusion that any particular individual had committed a criminal offence .


In TIME of DATE , the father of S. , born in DATE , laid a criminal information against the applicant , alleging that the applicant , her private music teacher , had sexually abused PERSON during an individual music lesson that TIME . S. and her mother were questioned at the local police office on TIME DATE . S. was heard by a police officer and confirmed her father ’s statements . PERSON ’s mother stated that PERSON had been very disturbed after her music lesson and that she had later confided in her mother .

On DATE ORG , sitting with a single judge , convicted the applicant of having committed the offence of sexual abuse of a child in concurrence with the offence of sexual abuse of a charge . He was sentenced to CARDINAL months’ imprisonment on probation .

In establishing the relevant facts , the court relied on the statements made by the mother concerning her daughter ’s account of the relevant events , her behaviour after the music lesson on DATE and her character in general , and also on the evidence given by the police officer who had questioned PERSON shortly after the offence in DATE .

The court dismissed the applicant ’s request for a psychological expert opinion regarding the credibility of S. ’s statements on the ground of the court ’s own professional experience , acquired as a judge in family matters , in evaluating statements made by children .

Moreover , the court observed that it had not been reasonable to hear S. herself , as , according to her mother , she had meanwhile repressed her recollection of the event in question and would seriously suffer if reminded thereof . If PERSON were to be examined , this would not contribute to a further clarification of the facts , but seriously impair her personal development .

The applicant appealed to ORG , requesting his acquittal . In the appeal proceedings , he was assisted by counsel .

On DATE ORG dismissed the applicant ’s appeal against his conviction of sexual abuse of a child , but set aside the conviction of sexual abuse of a charge . The sentence to CARDINAL months’ imprisonment on probation was upheld .

ORG noted that the applicant had denied having sexually abused PERSON It found that his guilt could be established on the basis of the evidence before it , i.e. the statements made by PERSON mother and the police officer as well as a psychological expert opinion on the question of S. ’s credibility , ordered in the context of the appeal proceedings . In her report of DATE , the expert , who had questioned PERSON in DATE , confirmed that S. ’s statements were credible .

ORG considered that the absence of PERSON ’s testimony in court constituted a serious shortcoming in the taking of evidence . In this respect , it noted that the parents had refused to bring their daughter to court on account of the risk that her state of health would deteriorate as she suffered from neurodermatitis . According to ORG , the GPE refusal was understandable . In this respect , ORG had regard to a medical certificate confirming the GPE statements and the findings of the psychological expert that S. ’s state of health would most likely deteriorate again if she were to be heard anew on the event in question . Taking into account that S. ’s statements had been reported by her mother and by the police officer and that an expert opinion on her credibility had been prepared , ORG , considering the rather trivial nature of the charge and the sentence at stake , reached the conclusion that PERSON was to be regarded as a witness out of reach .

On DATE ORG dismissed the applicant ’s appeal on points of law .

On DATE ORG refused to entertain the applicant ’s constitutional complaint , leaving open the question whether the complaint had been lodged in time .

The conduct of trial proceedings is governed by sections CARDINAL to CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) .

As regards the taking of evidence , section CARDINAL(CARDINAL ) provides that the court shall , proprio motu , extend the taking of evidence to all facts and evidence important for the decision in order to determine the truth .

A request for the taking of evidence may be refused under the statutory conditions of section CARDINAL(CARDINAL ) to ( CARDINAL ) . Pursuant to section CARDINAL(CARDINAL ) , second sentence , an application may , inter alia , be refused if the evidence is unavailable .


CASE OF LINDON, OTCHAKOVSKY-LAURENS AND JULY v. FRANCE

No violation of Art. 10;No violation of Art. 6-1

Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens

The first applicant is a writer and the second is the chairman of the board of directors of the publishing company ORG ; the third was the publication director of the DATE newspaper ORG . They were born in DATE respectively and live in GPE .

The first applicant is the author of a book presented as a novel under the title FAC ( “ PERSON Le Pen on Trial ” ) , published in DATE by P.O.L.

NORP The novel recounts the trial of a ORG militant , PERSON , who , while putting up posters for his party with other militants , commits the cold - blooded murder of a young man of NORP descent and admits that it was a racist crime . He is defended by a NORP , left - wing and homosexual lawyer , PERSON .

The novel is based on real events and in particular the murders , in DATE , of PERSON , a young NORP who was thrown into the FAC by skinheads during a ORG march , and of PERSON , a young NORP of NORP origin who was killed in GPE by militants of the same party . Those militants were convicted in DATE after a trial in ORG during which ORG leaders , Mr ORG included , declared that the case was no more than a provocation and a put - up job through which the party ’s enemies sought to harm it .

The author builds the plot around the lawyer , the main protagonist , who throughout the trial finds himself embroiled in a political debate . At the very beginning he raises the question of Mr ORG responsibility : “ Is n’t the Chairman of ORG responsible for the murder committed by one of his teenage militants inflamed by his rhetoric ? ” ( page CARDINAL ) . The novel focuses on a number of figures who are characterised by their moral or political positions in relation to the ideology and political party of the far right . The work also seeks to highlight the difficulties and contradictions of certain “ anti - racist ” stances .

The text on the back cover of the book describes the novel as follows :

“ How can PERSON be fought effectively ? The youth PERSON , member of ORG , has committed a cold - blooded racist murder , killing an NORP youth in the open street . The case has caused an outcry and it is generally agreed that PERSON ’s trial should really be that of his mentor .

DATE NORP lawyer PERSON is defending the murderer . He has certain ideas about how best to fight PERSON .

– Set a trap for ORG ? But it would backfire on all of us , warns his boyfriend PERSON .

PERSON pursues his fight regardless . His strategy is unfathomable . Wo n’t he become the punchbag of the anti - racists and the champion of those he seeks to defeat ? PERSON ORG pretends to show him some respect . He is beset with troubles on all sides – it ’s as if those who have no real success in their fight against ORG are nevertheless suspicious of anyone trying a different approach . ”

By originating summonses of CARDINAL and CARDINAL DATE , ORG and Mr ORG brought proceedings against the first CARDINAL applicants in ORG for the offence of public defamation against a private individual , as a result of the novel ’s publication , under sections ORG of DATE . CARDINAL extracts from the novel were the subject of particular complaint : those ( on pages DATE , CARDINAL and CARDINAL ) that were reproduced in a judgment delivered by ORG on DATE ( see paragraph CARDINAL below ) , and the following CARDINAL passages :

On CARDINAL the author attributes the following remarks to PERSON , PERSON ’s mother :

“ It might have crossed his mind , but he was never much good at shooting – my husband did n’t like PERSON using his rifle . But maybe the lad was humiliated because he PERSON never beaten anyone up , when all his mates from ORG were bragging about their DATE clean - up rounds on the housing estates . ”

On page CARDINAL , concerning a ORG demonstration , the author writes :

“ The crowd assembled on Place de la GPE , now whipped up by their master ranter , mostly consists of youths . If you searched them you PERSON find handguns by their CARDINAL . They ’re ready for a fight – they ’re only too pleased if far - left organisations think it ’s a good strategy to confront them . The atmosphere is in some ways CARDINAL of pre - insurrection , but as the journalists present have observed , the feeling on the side of the NORP is more CARDINAL of disgust than of panic . A fascist coup ORG is n’t yet on the cards , there is more a fear of gangrene setting in DATE a social disease that can occasionally be stopped from spreading or curbed temporarily . ”

In a judgment of DATE , ORG convicted the second applicant of defamation and the first applicant of complicity in that offence , taking account , however , of CARDINAL of the CARDINAL offending extracts , namely those on pages CARDINAL , DATE , CARDINAL and CARDINAL of the book . They were each sentenced to pay a fine of MONEY ( FRF ) ( equivalent to MONEY ( ORG ) ) and ordered jointly and severally to pay ORG CARDINAL ( ORG CARDINAL,CARDINAL.CARDINAL ) in damages to each of the civil parties , together with the cost of publishing an announcement of the judgment .

In its judgment the court found as follows :

“ Whether the publication was defamatory :

It should first be noted that , whilst the author chose to write a ‘ novel’ , as indicated on the front cover of the book , he portrays , along with a number of fictional characters , an actual and living political figure , namely PERSON , and his party , ORG . In addition , the author announces the subject matter of his work in the title itself , ‘ PERSON on ORG . On the back cover he asks the question ‘ How can PERSON be fought effectively?’ and in the first few lines of the book he raises another question : ‘ Is n’t the Chairman of ORG responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?’ The reader thus immediately becomes aware that the fictional trial is a vector for direct criticism of PERSON , especially since the facts described are largely , and obviously , inspired by actual events which have had a great impact on public opinion .

Accordingly , although it is a novel , and although the offending remarks are only made by fictional characters , it can nevertheless be observed that the work seeks to impart clearly expressed ideas and to communicate a certain image of PERSON Pen , his party and their behaviour . The classification of the charge can not therefore be ruled out purely on the basis of the technique used to that end .

The text , regardless of its literary genre , is capable of harming the honour and reputation of the civil parties and it is appropriate to examine each of the offending extracts to establish their meaning and significance and to determine whether , for the charge of defamation to be made out , they are precise enough for the issue of proof to be addressed .

First passage , page CARDINAL : To allege that PERSON is the chief of a gang of DATE in other words , that he heads a group of murderers – constitutes , in the context of the book , an evidently defamatory allegation of sufficiently precise conduct , reference being made to the racist crime committed by the novel ’s protagonist , a young ORG member whose criminal act is said to have been inspired by the ideas advocated by PERSON .

It is of no consequence that the crime of ‘ PERSON is not real , because the author ’s intention is not to write a satire about an impossible event but , on the contrary , to make the reader believe that , given PERSON ideology , such a scenario is quite plausible and that he would be accountable for it . The story also evokes – inevitably , for the reader – the trial in DATE of ORG billstickers accused of killing a NORP youth , PERSON , in GPE . Similarly , when the author , a few passages further on , recounts the killing of a black youth called ‘ PERSON , who is thrown into the Seine during a demonstration at which ORG is present , the reader is bound to recall the real murder of PERSON , whose killers were taking part in a march held by that party .

The precision of the facts described in the offending extract is thus sufficient to constitute defamation against the civil parties , and the facts thus alluded to were susceptible of proof .

Second passage , page CARDINAL : The assertion that ‘ all his mates from ORG were bragging about their DATE clean - up rounds on the housing estates’ is not clarified by other remarks or illustrated by any given facts . It may stem from the boastfulness attributed to the character in the novel and is too vague to justify prosecution .

Third passage , page CARDINAL : ORG is accused of using violence against those who leave the party . The author has one of his characters warn PERSON lawyer against ‘ ORG common strategy’ of ‘ PERSON anyone who leaves it ( ‘ to beat you up ... QUANTITY against one , with metal bars , truncheons and steel - capped boots , TIME as you ’re leaving the FAC ) .

This extract , which concerns facts that are precise and susceptible of proof , namely the attacking or even killing of anyone who dares to betray and leave the party , damages the honour of ORG .

Fourth passage , pages CARDINAL - CARDINAL : To accuse PERSON of making statements ‘ with racist overtones that are barely concealed at best’ and to write that ‘ from behind each of his assertions looms the spectre of the worst abominations of the history of ORG constitutes defamation against him in that he is accused of a form of racism that reminds the reader of the worst atrocities ever perpetrated . The author moreover explains a few lines further on that PERSON ORG can put the idea of a racist murder into simple minds like that of PERSON , who ‘ would not have had a gun in his hand and a NORP kid at the end of it if PERSON had not made it PERSON ( p. CARDINAL ) .

Fifth passage , page CARDINAL : This passage , which describes the young ORG militants firstly as being whipped up by their ‘ master PERSON and secondly as being armed by the CARDINAL and of creating an atmosphere of ‘ pre - insurrection’ , is certainly insulting to PERSON , but too imprecise to constitute defamation ; the subsequent remarks do not concern the ORG but participants in that party ’s demonstrations and can not therefore be taken into account .

Sixth passage , page CARDINAL : PERSON is accused of being a ‘ vampire’ who thrives on ‘ the bitterness of his ORG and ‘ the blood of his enemies’ , and of being a liar , defaming his opponents to protect himself from the accusations against him .

The author develops this image and the term ‘ vampire’ by writing , just after the offending passage : ‘ ... PERSON used PERSON life and is now using his death to stir up other PERSON , to transform other lost youths into puppets who will have their lives and deaths manipulated by this ruthless puppeteer.’

These allegations about using the life and death of young militants , in driving them to murder and suicide , for personal political ends , are precise and damage the honour and reputation of PERSON .

As to the existence of good faith :

Defamatory allegations are , in law , deemed to have been made with the intention of causing harm , but they can be justified if the writer shows that he was acting in good faith .

The court observes in this connection that the author did not simply write a work of fiction . He portrayed to his readers PERSON , engaged in his usual activities as Chairman of ORG , with the intention of criticising him and his party and of challenging their ideas . PERSON indeed stated at the hearing that he had made much use of information in the news and , as a result , the reader may not be able to distinguish clearly between fact and fiction , so clear was the intention to associate the situations and remarks with recent events .

Although , in the sphere of political polemics and ideological debate , the greatest freedom of expression must be afforded to the author , that freedom is not unrestricted , and stops when it comes to personal attacks , whether they are made directly by the author or through the intermediary of fictional characters , and is discredited by the distortion of facts and by immoderate language .

Whereas the defence has asserted that this story reflects reality and does not twist it , the documents produced , which are mainly press articles , being devoid of evidentiary value , are insufficient to substantiate the defamatory allegations taken into account by the court concerning the criminal conduct imputed to the civil parties . No relevant judicial decision against them , which might have justified such assertions , was produced in the proceedings , and in the absence of documents the court can only find that PERSON distorted the facts to reinforce the hostility of his readers towards PERSON and his party .

Furthermore , whilst authors and polemicists are afforded freedom to use a specific register , this does not authorise the particularly excessive remarks that appear in the text .

It can not therefore be accepted that the defendants acted in good faith and the charge of defamation to the detriment of PERSON and ORG is accordingly made out ... ”

The first CARDINAL applicants appealed against the above judgment in ORG . They challenged the finding that the offending extracts were defamatory in nature . They argued that it was simply a work of fiction portraying fictional characters , as the reader could see from the very first page . They also argued that the remarks merely amounted to value judgments about the claimants , reflecting a public debate , treated with distance and irony , about how best to combat the rise of the far right . In the alternative , pleading good faith , they submitted that the ideas of PERSON Pen and ORG had not been distorted by the book and its characters , and that the offending passages consisted exclusively of remarks made by the fictional characters without reflecting the ideas of the author , who , for his part , had sought to criticise the strategy adopted by anti - racist associations and left - wing intellectuals in general , in their fight against ORG .

The applicants relied on LAW , claiming that this provision precluded any conviction because a work of fiction was entitled to reflect debate as to the moral responsibility borne by ORG and its leader ’s ideas in the commission of racist crimes . They emphasised that the freedom to hold opinions would be infringed if the author of a value judgment were to be penalised on the pretext that he could not prove the pertinence of his opinion , and referred in this connection to the PERSON v. GPE judgment ( DATE , Series A no . CARDINAL ) . Lastly , they argued that equally aggressive and defamatory remarks against the civil parties had been made in the past by politicians or journalists , and that Mr Le Pen himself had been convicted several times of incitement to racial hatred .

In a judgment of DATE , ORG ( ORG , consisting of PERSON , President , PERSON and Mr PERSON ) upheld the judgment of DATE as regards the defamatory nature of CARDINAL out of the CARDINAL passages taken into account by ORG , together with the fines imposed and the damages awarded by that court .

In its judgment ORG considered , firstly , that the work in question was a “ novel ” , “ a ‘ creation of the imagination’ as defined by the PERSON dictionary ” , whose story line was constructed around the dilemma facing the main character : “ The author has developed a plot , based on that framework , running from the beginning of the proceedings against the young defendant until his suicide in prison before counsel ’s address and the prosecution speech , and has given expression to many characters who mainly appear as stereotypes characterised by their moral or political position in relation to the civil parties , who themselves are explicitly real people . ” It further observed that Mr ORG and ORG , both appearing under their real and current identities , were constantly at the forefront not only of the debate conducted in open court but also of the exchanges between the various characters , “ and even at the heart of the intimate contradictions facing the main protagonist ” . The court then noted that , on a number of occasions , words had been put into the mouth of Mr Le Pen , who “ express[ed ] views that [ were ] close or identical to those [ that he took ] in reality , but which [ had not been ] regarded by the civil parties as impugning his honour and reputation or those of the party of which he [ was ] the leader ” . It further considered that the subject of the book was the question set out on the back cover , “ How can PERSON be fought effectively ? ” , adding that “ to ask that question , even in a novel , [ was ] not per se defamatory against him ” .

The court went on to point out that LAW of LAW DATE defined defamation as “ any statement or allegation of a fact that impugns the honour or reputation of [ a ] person ” and that the law made no distinction based on the nature of the writing in issue . On that basis , any writing , whether political , philosophical , novelistic or even poetical , was governed by the applicable rules in such matters , with regard both to public order and to the protection of individuals . However , the court added that “ the application of the rules on defamation in respect of a press article or other text directly expressing the view of its author requires , if the text is a work of fiction , an examination of the question whether the civil parties are actually the individuals concerned by the offending remarks , and then of the meaning attributed by the author to the words of his characters in the light of the ideas that he expounds in reality in his work ” . As to the second point – the first being manifestly established DATE the court found as follows : “ ... a distinction has to be made between the offending passages on pages CARDINAL , DATE , CARDINAL , and , lastly , CARDINAL , the only extracts now to be taken into account : some of them express the view of the narrator and coincide with the author ’s ideas as they emerge from the work as a whole , whilst others can be attributed only to the character making the remarks in question , in so far as the author genuinely distances himself from those remarks throughout the work , either through the narrator or by other means . ”

Using that method the court ruled as follows on the CARDINAL passages in question :

“ CARDINAL . Page CARDINAL : ‘ ... an effective way to fight ORG is to call for him to be put in the dock and show that he is n’t the Chairman of a political party but the chief of a gang of DATE after all , people would have voted for PERSON [ this view is attributed by the author to anti - racist demonstrators who have gathered outside the law courts ] .

This segment of text is preceded by another , which has not been mentioned by the civil parties : ‘ For them , it ’s not sufficient to call PERSON the murderer’ , following the narrator ’s description of the crowd of ‘ anti - racists’ which assembles in front of the law courts during the trial of PERSON .

To assert that PERSON is not the Chairman of a political party but the chief of a gang of killers , and then in addition to equate him with PERSON , is clearly defamatory , as was quite rightly observed by the court below .

There is nothing in the preceding or following sentences to suggest that any distance has been taken by the narrator DATE and therefore , in view of the book ’s literary construction , by the author himself DATE from this statement , which is attributed to the demonstrators gathered outside the law courts , and which , moreover , echoes the question presented on the back cover as the subject of the book : ‘ How can PERSON be fought effectively?’

This extract accordingly constitutes defamation against the civil parties .

Page CARDINAL : ‘ He ( Blistier [ the accused ] ) wants to frighten you , PERSON [ the lawyer ] . He wants to brand you as a member of his clan : that ’s a common ORG strategy , to make you look like a traitor if you later make the slightest criticism of ORG or his followers , and so they ’ll feel morally entitled to beat you up – to come after you , QUANTITY against one , with metal bars , truncheons and steel - capped boots , TIME as you ’re leaving the house , and give you a clear message that those who join the team stick together for life . Nobody leaves ORG with impunity . Please do n’t try and be clever , PERSON . I do n’t want them to kill you.’

These words are spoken by the boyfriend of the lawyer , PERSON , the main protagonist . The speaker is giving his own explanation about the defendant ’s attitude towards his counsel during the hearing , in response to a question from Mine .

This passage contains comments that are specific to the fictional character , albeit derogatory with regard to the civil parties , as observed by the court below .

Nevertheless , and contrary to the assessment of the lower court , they do not appear to be susceptible of proof within the meaning of the LAW of DATE : being attributed to a fictional character , in a situation which is itself fictional , the text does not suggest that they may necessarily be regarded as corresponding to the author ’s opinion .

This passage is not found to be defamatory .

Pages CARDINAL : ‘ Read the papers , listen to the radio and television , every statement by PERSON is bedecked DATE or rather bespotted and bespattered – with racist overtones that are barely concealed at best . Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind . Everyone knows it , everyone says it . What PERSON did was precisely what PERSON advocates . Perhaps not explicitly – he tries to abide by the law , even though he does not always manage to do so . But when you consider the situations in which he speaks , the innuendos he makes and the figures he supports , there can be no doubt’ [ here the lawyer is addressing the court ] .

It is clearly defamatory to accuse PERSON of ‘ proffering words or assertions with racist overtones that are barely concealed at best and from behind which looms the spectre of the worst abominations of the history of ORG .

Such an accusation is susceptible of debate as to whether or not it holds true in relation to the actual discourse of PERSON and ORG .

The defendants can not legitimately claim impunity for such remarks on the grounds that they derive from novelistic fiction and at the same time that they are covered by the statutory impunity concerning statements made during a judicial hearing .

The allegation by the character PERSON , the lawyer , that ‘ what PERSON did was precisely what PERSON Pen advocates’ , following the narrator ’s comment – just before the paragraph containing the passage in question – that ‘ once again , everyone agrees that this trial should be that of PERSON rather than that of PERSON , otherwise it would never have had such an impact’ , shows that through the remarks attributed to his main protagonist it is in fact PERSON who is expressing himself here with reference to the civil parties .

This extract constitutes defamation against the civil parties .

Page CARDINAL : After the defendant ’s suicide in prison , his lawyer gives the following statement on television : ‘ How can PERSON be allowed to play the victim after PERSON suicide ? Is n’t the ORG Chairman a vampire who thrives on the bitterness of his electorate , but sometimes also on their blood , like the blood of his enemies ? Why does ORG accuse NORP of the alleged murder of PERSON ? Because he is n’t afraid of lies – because engaging in defamation against his opponents always appears useful for him , of course , but it is also quite simply a means to deflect suspicion ; he ’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself.’

To describe PERSON , Chairman of ORG , as ‘ a vampire who thrives on the bitterness of his electorate , but sometimes also on their blood , like the blood of his enemies’ , impugns the honour and reputation of the CARDINAL civil parties .

This passage is part of a long television appearance by the main protagonist – the only one who , apart from his boyfriend , is portrayed in a positive light in the novel , as both characters convey , so to speak , the contradictions and values of the narrator DATE following the defendant ’s suicide in prison .

It is evident that this speech , which takes the form of an indictment , and which is presented as the only interview given to the media by the lawyer , who has previously turned down many other requests , constitutes both the synthesis and the final conclusion through which the author seeks to give his character an opportunity to express , with a certain solemnity in the context of this fiction , the author ’s own view as a militant writer .

Moreover , in the last CARDINAL pages of the book , following the television statement , no distance whatsoever is introduced between the narrator and the remarks made .

This extract thus constitutes defamation against the civil parties . ”

The Court of Appeal further dismissed the argument that the applicants had acted in good faith , on the following grounds :

“ Defamatory allegations are deemed to have been made in bad faith unless the defendant can show that they fulfil all of the following conditions : they must correspond to the pursuit of a legitimate aim ; they must not reflect any personal animosity on his part towards the civil party ; there must have been a serious preliminary investigation ; and the language used must be dispassionate .

In the present case , the legitimacy of the aim pursued by the defendants through the novel , namely ‘ to fight against PERSON Le Pen effectively’ , in other words to engage in a political combat , can not be challenged in a democratic society .

With its claim to be a ‘ combative’ work , the novel in question , and in particular the passages found to be defamatory , attest to patent animosity towards the civil parties . However , that animosity is explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as Chairman of ORG . That animosity , which is not directed against the civil party in person , can not be regarded as reprehensible per se .

Since this is a work of fiction , the question of the seriousness of the investigation underpinning the work can not be assessed as if it were a text intended to inform the reader of real facts or comment on such facts . However , the principle adopted for the construction of the work in issue , as can be seen explicitly from a reading of the text and as the defendants have asserted before the court , is based on the juxtaposition within an imaginary plot of , on the one hand , various fictional characters , and on the other , the Chairman of ORG , a real figure , who represents the focus in relation to which the imaginary characters take shape and around which they revolve throughout the novel .

Furthermore , the ideas , rhetoric , acts and gestures of PERSON are accurately described in the novel – as the defendants have claimed , producing cogent evidence to that effect – in relation to the reality of the various public manifestations of his political activity . Accordingly , it is appropriate to examine whether the use of the defamatory comments chosen by the author was preceded by an investigation sufficiently serious to justify the comments in question .

In this connection , whilst the rhetoric and ideas attributed to the civil parties , together with the ensuing debates , are unquestionably consonant with the actual representation of the ideas of ORG in reports on NORP political life DATE , the defendants have failed to adduce any specific evidence to show that the use of the wording found to be defamatory was preceded by basic verification as to the reality supposed to be evoked by that wording .

Similarly , it can not be said that the form of expression used in the CARDINAL extracts found to be defamatory is sufficiently dispassionate : to liken PERSON to the ‘ chief of a gang of ORG ( page CARDINAL ) , to assert that the murder committed by PERSON a fictional character – was ‘ advocated’ by PERSON Pen – a real person DATE and to describe the Chairman of ORG a real person DATE as a ‘ vampire who thrives on the bitterness of his electorate , but sometimes also on their blood’ , clearly oversteps the permissible limits in such matters .

It can not therefore be accepted that the defendants acted in good faith .

Lastly , the argument derived from the application of LAW and the PERSON v. GPE judgment of DATE , whereby ‘ a value - judgment made about a politician is by nature not susceptible of ORG is ineffective .

The allegations found in the present case to be defamatory , directed against a real politician , do not merely constitute value - judgments within the meaning of the judgment of ORG cited above , in a case where a journalist had described the conduct of a politician as ‘ the basest ORG , ‘ immoral’ and ‘ ORG . In Mr PERSON ’s case , he accuses the civil party of certain concrete practices ( describing him as the ‘ chief of a gang of killers’ , ‘ advocating the perpetration of a murder’ and ‘ a vampire who thrives on the bitterness and the blood of his voters’ ) . ”

In a judgment of DATE , ORG dismissed an appeal on points of law lodged by the first CARDINAL applicants . It rejected as follows the ground based on an alleged breach of LAW :

“ ... In finding the defendants guilty of public defamation against a private individual , taking into account CARDINAL extracts from the work , the judges , who made an accurate assessment of the meaning and significance of the offending writings , justified their decision without breaching the Convention provisions referred to in the ground of appeal .

Whilst LAW ... recognises , in its first paragraph , that everyone has the right to freedom of expression , that provision states , in its second paragraph , that the exercise of this right , carrying with it duties and responsibilities , may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society for the protection of the reputation of others . ... ”

NORP In its edition of DATE , in a column entitled “ Rebonds ” ( “ reactions ” ) , the DATE newspaper ORG published an article signed by CARDINAL contemporary writers concerning the first CARDINAL ORG conviction , on charges of defamation and complicity in defamation , by ORG in its judgment of DATE ( see paragraph CARDINAL above ) . The article took the form of a petition and read as follows :

“ Petition . The passages from the book ‘ PERSON ORG on Trial’ for which PERSON and his publisher were convicted are not defamatory . We are prepared to write them in a novel . We will write against ORG .

Novels can not be granted unlimited rights . But they have the right to exist and to evoke the real world in which the author and his peers live . PERSON and his publisher PERSON were convicted of defamation against PERSON on account of CARDINAL passages in the novel ‘ PERSON ORG on Trial’ .

To write , in a novel , that demonstrators who pay tribute to the victim of a racist murder consider that : ‘ For them , it ’s not sufficient to call PERSON the murderer ; an effective way to fight ORG is to call for him to be put in the dock and show that he is n’t the Chairman of a political party but the chief of a gang of DATE after all , people would have voted for PERSON is not defamatory in my view and I am prepared to write this in a novel .

To write , in a novel , that the boyfriend of a lawyer defending a murderer who belongs to ORG gives the lawyer this warning : ‘ He wants to frighten you , PERSON . He wants to brand you as a member of his clan : that ’s a common ORG strategy , to make you look like a traitor if you later make the slightest criticism of ORG or his followers , and so they ’ll feel morally entitled to beat you up – to come after you , QUANTITY against one , with metal bars , truncheons and steel - capped boots , TIME as you ’re leaving the house , and give you a clear message that those who join the team stick together for life . Nobody leaves ORG with impunity . Please do n’t try and be clever , PERSON . I do n’t want them to kill you’ is not defamatory in my view and I am prepared to write this in a novel .

To write , in a novel , that a lawyer , in defending his client who is accused of a racist crime puts the following arguments to the court : ‘ Read the papers , listen to the radio and television , every statement by PERSON is bedecked DATE or rather bespotted and bespattered – with racist overtones that are barely concealed at best . Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind . Everyone knows it , everyone says it . What PERSON did was precisely what PERSON advocates . Perhaps not explicitly – he tries to abide by the law , even though he does not always manage to do so . But when you consider the situations in which he speaks , the innuendos he makes and the figures he supports , there can be no doubt’ is not defamatory in my view and I am prepared to write this in a novel .

To write , in a novel , that a lawyer who has poorly defended his client , a ORG member accused of a racist murder , makes the following analysis : ‘ How can PERSON be allowed to play the victim after PERSON suicide ? Is n’t the ORG Chairman a vampire who thrives on the bitterness of his electorate , but sometimes also on their blood , like the blood of his enemies ? Why does ORG accuse the NORP of the alleged murder of PERSON ? Because he is n’t afraid of lies – because engaging in defamation against his opponents always appears useful for him , of course , but it is also quite simply a means to deflect suspicion ; he ’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself’ is not defamatory in my view and I am prepared to write this in a novel .

If these passages are to be considered defamatory in a novel , they are also defamatory in reality . I should be sued by PERSON and convicted by a court , if they are true to their own logic , for having reproduced those extracts here . ”

It was on account of the above article that Mr Le Pen and his party summoned the third applicant to appear before ORG in his capacity as publication director of ORG , alleging that he had committed the offence of public defamation against a private individual ( under sections PERSON ) , CARDINAL ) and CARDINAL of the Freedom of LAW of DATE ) .

In a judgment of DATE , the court found the applicant guilty of the criminal offence of defamation and sentenced him to pay a fine of ORG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) . It also awarded FRF CARDINAL ( ORG MONEY ) in damages .

The court , after observing that ORG had reproduced in extenso passages from the work that it had characterised as defamatory in its judgment of DATE , found that “ the defamatory nature of the remarks , which ha[d ] already been found to have impugned the honour and reputation of another and ha[d ] been repeated in the offending article , [ was ] ... not in doubt ” . As to the question of good faith , the court found that , whilst the newspaper ORG was entitled to comment on a judicial decision and to impart ideas and information on questions that formed the subject of public debate , it was nevertheless true that there was “ a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms ” . In the court ’s view , the publication of the defamatory passages in abstracto , outside their literary context , strengthened the dishonouring force of the allegations , which were shifted to the terrain of reality and plausibility , without any debate of ideas , as the signatories of the article had emphasised in concluding : “ If these extracts are to be considered defamatory in a novel , they are also defamatory in reality . ” The court added that other newspapers had reported on the debate triggered by the publication of “ PERSON Le Pen on Trial ” and the petition following the conviction of its author but had not reproduced the offending comments in extenso . It inferred that the third applicant “ could ... have reported on the offending petition and informed readers of the views of numerous writers and journalists , without , however , reiterating the offence of which Mr PERSON and his publisher had been convicted by reproducing the passages that had been found to be defamatory in the court ’s previous decision ” .

On DATE the third applicant lodged an appeal against the judgment . He contended that the impugned article was part of a broader political debate concerning ORG and its Chairman , and that the debate was intense because of events that had actually taken place . It was those events which had provided the inspiration for the novel by the first applicant , whose cause had been defended by the signatories of the petition , reacting in a democratic spirit and out of vigilance towards the far - right movement . The third applicant explained that the column “ Rebonds ” was specifically reserved for the opinions of commentators from outside the newspaper who expressed their views with the intention of triggering debate and provoking reactions among readers . He added that the column , in principle , was not supposed to be objective or impartial but to convey opinions and therefore entailed the freedom to hold those opinions . He argued that the free discussion of political matters should not be hindered by excessive requirements relating to the protection of the rights of others or the prevention of disorder .

In a judgment of DATE , ORG of ORG ( consisting of PERSON , President , and Judges PERSON and PERSON ) upheld all the provisions of the judgment under appeal .

The court pointed out that , in its judgment of DATE ( see paragraphs CARDINAL above ) , it had upheld the conviction of the first CARDINAL applicants on account of CARDINAL out of the CARDINAL offending passages in the novel . It reproduced those passages and , as regards the defamatory nature of the article , referred back to the grounds set out in DATE judgment , of which , it stated , the reasoning “ remain[ed ] applicable ” . It went on to dismiss the defence of good faith on the following grounds :

“ The existence of controversy surrounding Mr ORG and ORG has been patent for DATE , and that controversy has taken on a polemical aspect at certain times .

As regards the work ‘ PERSON ORG on Trial’ , the court found in its previous judgment that it was established that its very subject matter was the fight against the political ideas of the civil parties , which in this case had taken the form of a novel .

Such a medium does not preclude the application of the LAW of DATE where , firstly , the characters portrayed can be identified as real people , and , secondly , the defamatory allegations against them are a reflection not of the narrative process but of the author ’s own views .

On the basis of that analysis , the court considered that this situation obtained in respect of the novel itself . It is all the more true for the impugned article , which is presented as a shift from fiction in CARDINAL ways , being published even though the passages in question had formed the basis of a conviction and by clearly indicating that shift : ‘ If these passages are to be considered defamatory in a novel , they are also defamatory in reality . We will write against ORG

The authors of the text in issue had no other aim than that of showing their support for PERSON by repeating with approval , out of defiance , all the passages that had been found defamatory by the court , and without even really calling into question the defamatory nature of the remarks .

The polemical aim of a text can not absolve it from all regulation of expression , especially when , far from being based merely on an academic debate , its line of argument is built around reference to precise facts . There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder , and to avoid offensive expressions such as those describing Mr ORG as the ‘ chief of a gang of ORG or as a vampire .

The defence of good faith can not be admitted ... ”

On DATE the third applicant appealed on points of law , claiming in particular that there had been a violation of ORG CARDINAL and CARDINAL of the LAW . In respect of DATE he contended that ORG had already ruled on the defamatory nature of the book in question and that it had relied on that earlier judgment , so that the appeal had not been heard by an impartial tribunal but by a “ court which openly regarded itself as clearly targeted by the offending article ” .

In a judgment of DATE , ORG dismissed the appeal in the following terms :

“ ... It is apparent from the decision appealed against that PERSON , publication director , was summoned to appear before ORG of ORG on a charge of public defamation against a private individual , on account of having published an article . That article incorporated certain passages from a book for which the author had previously been found guilty under LAW of LAW DATE by a bench of ORG consisting of President PERSON and Judges PERSON and PERSON .

The appellant is not entitled to complain that Judges PERSON and GPE sat on the bench of the appellate court before which he appeared , in so far as the participation in this case of a number of judges of the criminal division of ORG in proceedings concerning charges brought , firstly , against the author of a defamatory text and , secondly , against the publication director who allowed certain passages from that text to be published , is not contrary to the requirement of impartiality enshrined in LAW . In addition , contrary to what has been alleged , there is nothing in the judgment appealed against to suggest that the judges deemed themselves to be targeted by the offending text or that they expressed an opinion contrary to the requirement of impartiality .

... In finding PERSON guilty ... ORG stated that the polemical aim of a text could not absolve it from all regulation of expression , when , far from being based merely on an academic debate , its line of argument was built around reference to precise facts . The court added that , in this case , the accusations that had been made without a meaningful prior investigation were particularly serious ones , the civil party having been described as the ‘ chief of a gang of ORG or as a vampire .

In these circumstances ORG justified its decision without breaching LAW ... ”

The relevant parts of the Freedom of the Press Act of DATE provide as follows :

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

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . ”

“ Anyone who by any of the means set out in LAW [ including ‘ written’ and ‘ printed’ matter and ‘ any other written medium’ ‘ sold or distributed , or offered for sale’ ] makes a statement that is defamatory of private individuals shall be liable on conviction to CARDINAL months’ imprisonment and a fine of QUANTITY , or to CARDINAL only of those sentences ” .

“ The following persons shall be liable , as principals , in the following order , to penalties for offences committed via the press :

Publication directors or publishers , irrespective of their occupation or title ... ”

An individual may be defamed through the portrayal of characters in a novel or play , without it being necessary for the name of the imaginary person to correspond to that of the individual who claims to have been defamed , provided he or she is referred to in a clear manner such that the public can not be mistaken ( ORG , DATE ) . On the other hand , the fact that the name of the imaginary person corresponds to that of a living person is not sufficient for the latter to allege defamation , even if there are certainly similarities of character and diffusion ( ORG , DATE ) . Such situations mostly give rise to proceedings for civil liability and damages are awarded whenever there has been prejudice , that is to say when the public has unavoidably been led to associate the living person with the imaginary person and where an error of judgment can be attributed to the author ( ORG , CARDINAL DATE , and ORG , CARDINAL DATE ) . ( Source : Juris - Classeur de droit pénal , DATE , ORG , fascicule CARDINAL , “ CARDINAL personnages littéraires ” ( literary characters ) ) .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

The applicants were born in DATE , DATE and DATE respectively and lived in LOC .

In DATE ORG of Highways seized a plot of land belonging to the applicants without any formal expropriation , for the construction of a highway . The applicants brought an action before ORG to obtain compensation for the de facto expropriation of their property . They requested MONEY ( TRY ) as compensation from the court and reserved their right to increase this claim in due course .

On DATE ORG awarded the applicants TRY CARDINAL as compensation for the de facto expropriation of their land , as requested , plus interest . The applicants initiated execution proceedings before ORG to obtain that amount ( file no . CARDINAL ) .

On DATE ORG upheld the judgment of the first - instance court .

The applicants subsequently brought an additional action ( “ ek dava ” ) before ORG to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings , which had valued the land at a rate higher than that initially requested by them .

On DATE ORG awarded the applicants TRY PERSON , plus interest . The applicants initiated another set of execution proceedings before ORG to obtain the amount awarded ( file no . CARDINAL ) .

On DATE ORG upheld the judgment of ORG , however reduced the amount awarded to the applicants to TRY CARDINAL,CARDINAL.CARDINAL .

On DATE and CARDINAL DATE the administration paid TRY CARDINAL and CARDINAL respectively to the files before ORG . According to the information provided by the applicants , there has been no debt outstanding in the execution files .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mr J. Jurovský , a lawyer practising in GPE . The respondent Government were represented by PERSON , their Agent .

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

On DATE the applicant requested the enforcement of a payment order of DATE by which a sum of money had been awarded to him .

The case was examined several times by the Vranov ORG and the appellate court , and on DATE the President of the Vranov nad Topľou ORG admitted that there had been undue delays in the enforcement proceedings .

On DATE the Vranov ORG discontinued the proceedings as the debtor ’s truck which the applicant had proposed to sell had been destroyed .

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

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL have been violated as a result of a final decision , by a particular measure or by means of any other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of a failure to act , ORG may order that [ the authority ] which violated such rights or freedoms shall take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation to that existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL have been violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE .

After DATE the ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .

According to an explanatory letter by the president of ORG of DATE , nothing has prevented ORG from dealing with complaints about length of proceedings in cases in which proceedings were instituted also before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed .


András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant is a lawyer . In DATE the ORG ordered the search of her office , in application of section CARDINAL subsections ( CARDINAL ) and ( CARDINAL ) of the Code on Criminal Procedure , and the seizure of documents concerning CARDINAL of her clients , PERSON , who had been suspected of having been engaged in illegal financial activities .

On DATE the police searched the applicant 's office . The search lasted from TIME until TIME in the presence of a public prosecutor . The applicant herself did not arrive on the LOC before CARDINAL a.m.

The Government claimed that until the applicant 's arrival , another lawyer , PERSON , whose practice was in the neighbouring but entirely separate office , had been present . The applicant contended that PERSON had not been present inside her office under search , nor had she represented her . According to the documents submitted , PERSON was not formally appointed to defend the applicant 's interests , nor did she sign the minutes of the search in such a capacity . Moreover , the parties ' submissions diverged as to whether the police seized all the documents stored in the office or only those relating to PERSON

Subsequently , the applicant complained about the allegedly unlawful search and the indiscriminate seizure of all documents found .

On DATE ORG dismissed the applicant 's complaint concerning the alleged unlawfulness of the search . The applicant appealed .

On DATE ORG ordered the restoration of part of the documents , which were unrelated to the case of the suspect .

On DATE the Pest County Public Prosecutor 's Office reversed the decision of CARDINAL DATE and established that the search had been unlawful in that neither the applicant nor a representative had been present . It observed that PERSON could not be considered a person appointed to represent the applicant 's interests ; she had not been appointed to this end by the authority in charge . The ORG was however of the view that the lawfulness had been restored by virtue of ORG decision of DATE .

Under LAW subsections ( CARDINAL ) and ( CARDINAL ) of the Code on Criminal Procedure , a house search ( házkutatás ) shall normally be carried out in the presence of the person concerned . In the absence of the latter or his / her representative , such a person shall be appointed to that end as can be assumed with sufficient certainty to represent appropriately the interests of the person concerned .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently imprisoned in GPE . He was represented before the Court by PERSON PERSON , a lawyer practising in PERSON . The respondent Government were represented by Mr P. A. GPE , the representative of GPE at ORG .

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

On DATE the police instituted criminal proceedings in connection with a theft of horses committed the night before . The police allegedly had information about the applicant 's belonging to the crime and CARDINAL of the thieves being at his home . At TIME on DATE QUANTITY police officers came to the applicant 's house in GPE . They entered his property through a gate and a front door which were unlocked . CARDINAL of them produced their service identification cards to the applicant 's sister who was in a kitchen . The applicant was not at home . CARDINAL police officer left the house while the other CARDINAL decided to remain inside and await the applicant 's return . Some time later the applicant arrived . CARDINAL of the policemen produced his service identity card . As the applicant had doubts about the lawfulness of their visit he sent his sister to call the police . Then a quarrel and a fight ensued between the applicant , who was supported by his relatives , and the CARDINAL policemen . A squad of police officers arrived soon afterwards . The police left the applicant 's home TIME at an unspecified time .

Early in the morning of DATE the applicant was arrested pursuant to LAW as a suspect on a count of horses ' theft and escorted to the police station . On DATE the applicant was detained on remand pursuant to LAW .

According to the applicant , on DATE he was beaten up by police officers who tried to force him to confess .

As the CARDINAL other suspects changed subsequently their original statements and testified that the applicant had not participated in the crime , in the absence of any other evidence , the police discontinued the criminal proceedings against the applicant and released him on DATE .

On DATE , at TIME , the applicant was examined in the PERSON traumatology centre . According to their certificate of DATE , the applicant had a closed head injury , concussion , a broken nose and bruises on his chest and waist . The applicant was forwarded for a further examination and an in - patient treatment to the PERSON hospital where he underwent treatment from CARDINAL to DATE . The hospital 's certificate of CARDINAL DATE confirmed the applicant 's diagnosis of a closed head injury and concussion .

On an unspecified date in DATE the applicant lodged a request with ORG to investigate the incident of DATE and his beating by police officers during his remand in custody from DATE . On DATE the regional prosecutor forwarded his application to ORG . After an inquiry into the applicant 's allegations ORG refused , on DATE , to institute criminal proceedings . Upon the applicant 's complaint to a higher prosecutor , on DATE , ORG upheld the district prosecutor 's decision .

On numerous occasions subsequently the applicant unsuccessfully lodged , with various levels of the prosecuting authorities , requests to reopen the investigation and institute criminal proceedings against the alleged perpetrators .

By a letter of DATE the regional prosecutor stated that the previous decisions of the prosecuting authorities were not to be reconsidered . The entry of the police into the applicant 's home was compatible with LAW and LAW . The investigation into the alleged ill - treatment was discontinued for the lack of evidence .

According to the Government , at some point ORG re - opened the investigation and following the additional inquiry into the applicant 's allegations again , on DATE , refused to institute criminal proceedings against the police officers having examined statements of witnesses and an expert opinion . The witnesses ( police officers , the applicant 's lawyer and CARDINAL other suspects in the proceedings concerning the theft of horses who saw the applicant at a confrontation DATE after the alleged ill - treatment ) did not confirm the applicant 's allegations . The expert questioned the applicant 's diagnosis of concussion and the fracture of nose , pointing out that medical documents did not specify supporting clinical data , and concluded that it was impossible to determine the time the injuries on the applicant 's face and waist had been caused .

According to the applicant , ORG did not examine his applications challenging the prosecutor 's refusal to institute criminal proceedings , which were lodged on DATE and DATE .

On DATE the ORG of Orel convicted the applicant of assaulting police officers on DATE . On DATE , upon the applicant 's appeal , the ORG quashed the judgment of DATE and remitted the case for a fresh examination at first instance , referring in this connection to the unlawful composition of the first instance court .

On DATE the applicant was convicted by ORG . He received a suspended sentence of DATE imprisonment . The sentence was revoked in view of an amnesty law .

Regarding the events of DATE , the court found that the police officers had arrived at the applicant 's home , acting in accordance with the law on police , in order to arrest a suspect and collect evidence about the applicant 's belonging to the crime . Upon the applicant 's arrival the police officers were attacked by the applicant and his relatives . As a result of assault one police officer sustained injuries to his arm , waist , nose and ear . The other policeman was diagnosed with concussion .

On DATE the ORG convicted the applicant of murder and robbery and sentenced him to DATE imprisonment .