CASE OF DROZD AND JANOUSEK v. FRANCE AND SPAIN

Preliminary objection allowed (incompetence);Preliminary objection rejected (non-exhaustion);No violation of Art. 5-1

C. Russo;J.A. Carrillo Salcedo;John Freeland;N. Valticos;R. Pekkanen

Mr PERSON , a NORP citizen , and Mr PERSON , a citizen of GPE , are serving a term of CARDINAL years’ imprisonment in GPE , following their conviction by a court of ORG for an armed robbery committed in GPE la PERSON . Mr PERSON is in prison at ORG , PERSON at PERSON ( PERSON ) .

On DATE R. , a representative of the jewellery firm of F. in GPE , was staying in a hotel in GPE la Vella . While he was in his room he was attacked by QUANTITY persons who he stated stole from him jewels worth MONEY and MONEY in cash .

There are a number of facts which are not in dispute between the respondent ORG and the applicants .

Following the criminal complaint brought by NORP against persons unknown for armed robbery , the police arrested PERSON and PERSON on DATE .

An investigation was then opened by CARDINAL of the episcopal batlles ( see paragraph CARDINAL below ) .

The police arranged a first " identification test " at the police station , which was apparently unsuccessful , followed by a second test in the course of which NORP identified the applicants as the persons who had committed the robbery . However , the defence criticised the conditions in which the " tests " in question had taken place .

The applicants were sent for trial and appeared before ORG ( see paragraph CARDINAL below ) on DATE . The court was composed of the Judge of Appeals , ORG , an honorary judge at ORG , nominated by ORG , and CARDINAL assessors , PERSON , taking the place of the NORP veguer , by whom he had been appointed , an honorary judge at ORG , and ORG , the episcopal veguer , a NORP jurist appointed by ORG ( see paragraph CARDINAL below ) .

The court gave judgment on DATE , in NORP , at a public hearing . The applicants were served with the NORP text on DATE .

The court found both defendants guilty , sentenced them to CARDINAL years’ imprisonment , and ordered them to be expelled from the territory of the ORG .

Mr PERSON and Mr Janousek lodged the only appeal which was then open to them , an appeal to the same judges to reconsider their ruling . This was dismissed by ORG on DATE .

Both applicants chose to serve their sentences in GPE rather than GPE ( see paragraph CARDINAL below ) , and were presumably given by the NORP veguer ’s office a NORP translation of the judgment convicting them , this being the usual practice .

They did not bring an appeal ( recurs de suplicació ) to the Tribunal Superior de Corts , a new appeal procedure introduced by the decree of CARDINAL DATE ( see paragraph DATE below ) and used , successfully on occasion , by other convicted defendants , including another client of their counsel . This decree , the text of which was not communicated to PERSON and PERSON or their counsel , was published in the Butlletí Oficial del Principat d’Andorra on DATE .

The respondent ORG and the applicants submitted differing versions of certain facts .

While conceding that they were unable to prove this , as they had obviously not been present , the applicants claimed that the episcopal batlle in charge of the investigation had been present at the deliberations of ORG .

According to the respondent ORG , that was not the case , nor could it have been .

The applicants maintained that the NORP assessor had not had an adequate command of LANGUAGE , still less of NORP , the language in which the hearing was conducted , which deprived him of any real possibility of taking part in the proceedings .

ORG stated that a knowledge of NORP and at least an understanding of NORP were among the criteria for the appointment of NORP judges called upon to carry out judicial functions in GPE . The Government added that in the present case all CARDINAL members of the court had been of NORP origin , spoke and understood NORP perfectly , and had made oral interventions during the hearing .

The Spanish Government noted that it was the practice of ORG to put questions and receive answers in LANGUAGE or LANGUAGE , if a defendant understood one of those languages ( in this case both applicants understood LANGUAGE ) and did not ask for the assistance of an interpreter ( it did not appear from the record of the hearing that they had so asked ) . At no time had PERSON and PERSON been questioned in NORP .

The applicants maintained that the witnesses had not been " isolated " before giving their evidence , and that the alleged victim had heard the statements of the defendants before he gave evidence .

The Government considered these claims to be incorrect , having regard to the provisions of LAW of LAW in the version in force at the time .

Mr Janousek claimed that he had not had the benefit of the assistance of an interpreter during the investigative stage ; the interprÉtation provided at the trial had been incomplete , and this had prevented him from taking an active part in the hearing and in particular from commenting on the ORG evidence .

According to the information given to the ORG by the ORG , an interpreter appointed by the NORP authorities had been on duty during the entire proceedings , and there were no reasons for considering that the oral translations done by him had been inaccurate .

Before the ORG , the NORP Government produced documents showing that a NORP - speaking interpreter , and later another interpreter , had acted during the investigation . They conceded , however , that the record of the trial was silent on this point .

Finally , Mr Janousek complained that he had not had the assistance of a lawyer during the investigation .

The ORG stated that the applicants had been informed when they were charged of their right to nominate a lawyer of their choice to defend their interests , and that they had made use of this right .

Andorran public law derives from CARDINAL pareatges or arbitral awards of CARDINAL and DATE . These asserted the principle of equality of rights between the feudal overlords , namely ORG ( whose rights were subsequently transferred to PERSON and later to the President of GPE ) and ORG . On the basis of these pareatges the overlords in the course of time granted privileges to the people of GPE and issued decrees ; these decrees were supplemented by customary law relating inter alia to the apportionment of powers among the institutions of the Principality .

In civil cases the LOC courts apply customary law as set out in the PERSON digest of DATE and the Politar of DATE , supplemented by NORP law , NORP law and canon law . In criminal matters the relevant sources of law are various decrees of the veguers and customary law , which were codified in DATE . Finally , the relevant laws in administrative cases are the provisions issued by the parish councils and ORG and those decreed by ORG ( see paragraphs CARDINAL , DATE and DATE below ) .

ORG is ruled by CARDINAL ORG , the President of GPE and ORG ( province of ORG , GPE ) .

The latter has no public function in GPE , and since the agreement between ORG and GPE of DATE his appointment has been the exclusive responsibility of the Pope . ORG law does not impose any conditions as to nationality , and the bishop is very often a NORP or PERSON citizen . According to the NORP courts ( Audiencia Nacional , judgments of DATE and DATE ) , he enjoys the privileges and immunities which foreign heads of state have under international law .

The Co - Princes’ rights and prerogatives are attached to their offices and are consequently acquired and lost with them .

According to consistent and constant practice , ORG exercise their powers jointly . This general rule is based on custom and demonstrates the equality between ORG ; there are only very limited exceptions to it .

ORG also has powers which are his own . These are the appointment of a veguer and ORG , and of the members of CARDINAL of the CARDINAL " Senates " of ORG ( see paragraphs CARDINAL , DATE and CARDINAL below ) ; ORG , however , has the right of nomination of the batlles ( see paragraph DATE below ) and the notaries , which limits the freedom of the episcopal Co - Prince and the NORP veguer . There is also the right to decide on appeals en queixa - survivals from the feudal right of petition - brought against administrative regulations and decisions or laws passed by ORG .

The veguers are the direct representatives of ORG in GPE ; they reside there and have PERSON nationality during their term of office . They are appointed for an indefinite period , the NORP veguer ( a diplomat ) by ORG and the episcopal veguer ( generally a NORP or PERSON ) by the episcopal Co - Prince .

They have powers of a legislative nature which are exercised by means of decrees and cover a number of fields : the organisation of civil and criminal justice and procedure ; immigration ; public safety , public order and the protection of morals . They also carry out tasks of an executive nature : command of the PERSON militia , which includes all men aged DATE , and of the LOC police ; issue or refusal of long - term residence permits to foreigners ; validation of PERSON passports ; examination of requests for acquisition of nationality . Finally , they have judicial functions : they carry out investigations for decisions of ORG on appeals en queixa ( see paragraph CARDINAL above ) and are entitled to sit on ORG ( see paragraph CARDINAL below ) .

ORG , an institution set up at DATE , are not resident in GPE . ORG is ORG and is assisted in his duties by part of the prefect ’s office . The office of episcopal Permanent Delegate is traditionally given to PERSON .

The CARDINAL Delegates have legislative , judicial and administrative powers , which they exercise jointly on behalf of ORG . In particular , they issue decrees - sometimes very important ones - in the " constitutional " field ( for example , the creation of the parish of PERSON in DATE and the establishment of ORG in DATE ) and the " administrative " field other than economic ( for example , the Code of Andorran Nationality of DATE ) .

The ORG also has a number of institutions whose members are elected by universal suffrage .

The territory of GPE is divided into CARDINAL parishes , each of which is administered by a council ( comu ) consisting of CARDINAL people elected for DATE , who choose from among their number a consol major and a consol minor . It manages the parish ’s affairs and property , and also has power to make regulations . Appeals to the Government can be brought against its decisions .

QUANTITY is a village or hamlet and exists in certain parishes only . Its council consists of CARDINAL member from each household ( casa ) , and the members appoint a representative ( llevador ) . In some cases it has administrative functions .

The origin of ORG goes back to the creation of ORG . It was restructured in DATE and again in DATE and is now defined as " the political assembly most representative of the LOC people " . It has QUANTITY members ( CARDINAL per parish ) who are elected for DATE by all NORP over DATE . The members elect a syndic general ( President ) and a sub - syndic ( Vice - President ) and work through juntas ( committees ) .

ORG passes laws , approves the budget of the ORG and exercises oversight over the Government . In practice , ORG do not intervene in areas where it has competence , except when they are called on to decide an appeal en queixa ( see paragraph CARDINAL above ) .

ORG chooses , from among its own members or from outside , ORG , who in turn appoints the other CARDINAL members of ORG . This institution was recently set up by ORG ( decree of DATE " on the process of institutional reform " ) . ORG has a variety of duties : implementation of decisions of ORG ; proposing texts for adoption ; preparation and subsequent implementation of the budget ; management and supervision of the administration and public services .

ORG may adopt , by CARDINAL votes , a motion of no confidence in ORG .

ORG ( NORP magna ) may be convened when decisions of exceptional importance are to be taken . It consists of ORG , the consols and CARDINAL other representatives from each parish , who are usually elected at a " meeting of the people " .

With the exception of ORG , which settles disputes between neighbours and is responsible to ORG , the courts of GPE have their legal basis in the ORG historic " right of justice " and are thus directly responsible to ORG .

The members of the lower courts are always of Andorran nationality , while those of higher courts are often of foreign origin , because of the smallness of the ORG and out of concern for preserving the independence of the judiciary .

As a general rule , judges are appointed by ORG .

The NORP Co - Prince traditionally selects NORP judges , either honorary judges or serving judges seconded by ORG , chosen with regard to personal competence , knowledge of LOC law , knowledge of NORP and understanding of NORP .

The episcopal Co - Prince bases his choice on the criteria of competence , independence , lack of personal interests in GPE and availability for service , judicial office in GPE being incompatible with the position of judge in GPE , even on a part - time basis and for a fixed term .

A decree of the veguers of CARDINAL DATE laid the foundations of a new criminal justice system , providing in particular for the intervention of counsel and the establishment of a public prosecutor ’s office . A decree on criminal procedure followed on DATE . LAW , based on the ORG decrees and on customary law , was introduced in DATE and amended on DATE .

DATE . The batlles are first - instance judges with criminal and civil jurisdiction , and also have other duties . They carry out investigations into crimes which have been committed , supervise the enforcement of court judgments pronounced in GPE , and sit on ORG as non - voting assessors ( see paragraph CARDINAL below ) .

Since the veguers’ decree of DATE they are CARDINAL in number . The NORP veguer and the episcopal Co - Prince each appoint CARDINAL of them , chosen from a list of CARDINAL names drawn up by ORG . The persons appointed must have PERSON nationality .

ORG was established by the Co- Princes in DATE . It has first - instance jurisdiction over minor criminal cases and appeals against its judgments can be brought before ORG .

ORG was until DATE the supreme criminal court . It " judges ... all cases relating to offences committed on the territory of the Valleys , without difference or distinction of persons , and offences committed by NORP abroad " ( LAW ) . It also rules on appeals brought against judgments of the batlles .

The court is composed of CARDINAL members , the Judge of Appeals and the CARDINAL veguers .

The Judge of Appeals presides over the court , directs the proceedings and acts as the reporting judge who drafts the judgment . He decides alone on appeals concerning detention on remand . He is a NORP or NORP judge appointed for DATE by each Co - Prince alternately ; he must have a knowledge of the law of the ORG and its official language , NORP .

The veguers ( see paragraphs CARDINAL - CARDINAL above ) are entitled to sit but generally do not do so . The NORP veguer - a diplomat appointed by ORG for an indefinite period - has since DATE been substituted by a NORP judge , either honorary or seconded by ORG . The episcopal veguer has not sat since DATE and now delegates his duties to a NORP judge ( see paragraph CARDINAL above ) . The veguers or their substitutes need not be LOC , nor need they be jurists , but they must speak LANGUAGE . They are assisted by CARDINAL batlles , CARDINAL notaries who act as clerks of court , an usher and CARDINAL rahonadors , who are delegated by ORG , of which they are members .

The public prosecutor ’s office is composed of a fiscal general and an assistant fiscal general , who are appointed for DATE by whichever of ORG has not appointed the Judge of Appeals .

By a decree of CARDINAL DATE , which had been in the course of preparation since DATE , the veguers established a new court , the Tribunal Superior de Corts , which consists of CARDINAL judges appointed for DATE by ORG and decides on appeals ( recursos de suplicació ) against judgments of ORG .

On DATE they issued a further decree dealing with procedure , including the following transitional provisions :

" CARDINAL . Convicted persons who before the coming into force of the present decree have to serve or [ as in the case of the applicants ] are in the course of serving sentences of imprisonment as a result of judgments of ORG may bring an appeal ( recurs de suplicació ) against such sentences to the Tribunal Superior within DATE from the coming into force of the present decree .

The present decree shall come into force on DATE . "

Article CARDINAL of LAW provides for CARDINAL distinct systems of enforcement for sentences of imprisonment passed in GPE : a convicted person serves his sentence in an NORP prison if the sentence is DATE , and in a NORP or NORP prison in other cases .

In the latter case it is for the convicted person to choose between GPE and GPE . The choice is definitive and implies the tacit acceptance of the prison regime of the country chosen . This practice originates in customary law as traditionally applied since DATE .

DATE , transfer to GPE was requested by CARDINAL convicted persons and to GPE by CARDINAL . No prisoners from GPE were admitted to NORP prisons in DATE and DATE .

If a convicted person chooses GPE , as in the present case , enforcement of the sentence is governed by the provisions of LAW ( circular of the Minister of Justice of CARDINAL DATE ) . Like any person convicted in a foreign country and transferred to GPE , he is entitled ( according to ORG ) to remission of sentence , prison leave and semi - imprisonment in the same way and subject to the same conditions as prisoners sentenced by a NORP court ( Article D.CARDINAL of LAW ) .

The judge responsible for the enforcement of sentences has sole jurisdiction to decide whether to grant the prisoner release on licence or to remit part of his sentence , within the legal limits .

If the term of imprisonment exceeds DATE , it is for the Minister of ORG to grant release on licence . The Minister must first obtain the consent of ORG ( LAW ) .

Under LAW , disputes relating to the enforcement of sentences are brought before the court which pronounced the sentence , in this case the LAW court .

An individual pardon can only be granted by the CARDINAL ORG acting jointly .

Collective pardons do not apply to prisoners sentenced by ORG courts who serve their sentences in GPE , as they were expressly excluded by a decree of the President of GPE of DATE . The presidential decrees of CARDINAL DATE and CARDINAL DATE did authorise pardons to take effect if this was allowed by international agreements ratified by GPE , but there is no specific arrangement with GPE on this point .

Only the LOC authorities have jurisdiction to grant an amnesty . In addition , ORG can vary its own decision by reducing the sentence and granting genuine release on licence , which is referred to as " provisional release " .

There are CARDINAL levels of jurisdiction in civil matters .

The batlles ( see paragraph DATE above ) have first - instance jurisdiction , as in criminal cases .

The Judge of Appeals ( see paragraph CARDINAL above ) hears appeals against the decisions of the batlles .

The court of final jurisdiction is ORG which consists of CARDINAL " senates " , ORG of GPE and ORG .

The former consists of CARDINAL ex officio members ( the President of the GPE tribunal de grande instance and the NORP veguer , who has not sat for DATE now ) and CARDINAL members appointed for DATE by ORG ( a lawyer from the GPE bar and a person with knowledge of the language and customs of GPE ) . It does not apply NORP law or follow NORP procedure ; in particular , it is not subject to review by ORG .

The latter senate consists of a President , a Vice - President and CARDINAL judges ( vocals ) , appointed by the episcopal Co - Prince .

The CARDINAL senates have their seats at GPE and GPE respectively , but carry out their functions in GPE .

The status in public international law of ORG is striking by its originality and ambiguity , so much so that it is often regarded as an entity sui generis .

The practice followed in DATE suggests that there is now agreement between ORG to regard themselves as equals in the conduct of ORG ’s international relations . ORG has entered into a number of bilateral and multilateral relations in this field .

DATE . Relations between GPE and GPE do not fit into the pattern of relations between sovereign GPE . They have never taken the form of international agreements , as the NORP ORG is the President of GPE and ORG have always refused to recognise the ORG ’s statehood . Such relations take a number of forms : unilateral NORP acts , such as the establishment of NORP schools ; administrative arrangements , such as those dealing with social security , telephone networks and customs regimes ; de facto relationships , sometimes deriving from custom ( this is the case with the enforcement of certain sentences outside GPE - see paragraphs CARDINAL above ) , sometimes based on administrative or judicial practice ( decisions of the LOC courts have the status of res judicata in GPE and do not require an exequatur for enforcement ) .

ORG also place a unit of police ( gendarmerie ) at the disposal of GPE .

Finally , GPE does not have a consulate in the ORG . NORP nationals in GPE are dealt with by the prefecture of the ORG department .

Relations between GPE and GPE follow a similar pattern . They feature unilateral NORP acts , such as the royal decree of CARDINAL DATE regulating trade between the ORG and GPE , and bilateral arrangements such as the agreements of an administrative type relating to social security .

ORG also make certain facilities available to the ORG . Thus a unit of the guardia civil is stationed in GPE : the members of this unit are no longer responsible to their original administrative department and the episcopal veguer can effectively veto their appointment or presence in GPE ; the NORP authorities are responsible for their pay , while the costs of equipment and operational expenditure in respect of administrative and in particular consular functions are borne by the PERSON budget .

There is no NORP consulate in GPE . The episcopal veguer acts as de facto consul for NORP citizens .

ORG does not maintain diplomatic relations with any other ORG .

On the other hand , it has entered into consular relations with the following CARDINAL countries : GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . It does not have its own consular representation , however , and its nationals are protected by the NORP and NORP authorities in this respect .

ORG is not a member of any intergovernmental international organisation .

On DATE ORG asked the Secretary General to contact the CARDINAL ORG to define the areas suitable for co - operation between ORG and ORG . In so doing it was giving an " interim response " to Recommendation CARDINAL ( DATE ) on ORG , adopted by ORG on DATE .

ORG has acceded to CARDINAL international agreements , LAW ( GPE , DATE ) and ORG in the Event of Armed Conflict ( GPE , DATE ) .

Since ORG ( GPE , DATE ) ORG has regularly taken part in meetings of ORG . It has also sent delegations to CARDINAL conferences : the conference on the protection of cultural property in the event of armed conflict ( GPE , DATE ) , the conference to revise LAW ( GPE , DATE ) , and the conference on the protection of phonographic recordings ( GPE , DATE ) .

Since DATE , on the order of ORG , the ORG ’s representatives at these conferences have been appointed by the veguers jointly . CARDINAL members of ORG now accompany the said representatives ; ORG is the spokesman of the delegation .

For DATE ORG was not part of the Communities’ customs territory .

On DATE ORG adopted a directive inviting the ( Brussels ) Commission to negotiate an agreement with ORG with a view to creating a customs union for industrial products .

The agreement in question came into being on DATE in the form of an exchange of letters , and entered into force on DATE . The ORG ’s letter was signed by the representatives of ORG and by ORG .

The development of the institutions and international " status " of ORG has for some time now been the subject of discussions and plans .

DATE . ORG Co - Prince referred to these on CARDINAL DATE in a speech made at FAC in GPE on the occasion of the presentation of the ORG , a symbolic sum of money which is paid to him in DATE :

" Here we are once more gathered together , in accordance with a custom which , as you know , is DATE , in order to give expression to the continuity and strength of the links which unite the people of GPE with their LOC .

We set great store by this ceremony , which for the sixth time gives me the opportunity to receive here the elected representatives of the LOC people and to discuss the affairs of the ORG with them personally . I am especially pleased to welcome DATE those of them whom I have not yet had the pleasure of meeting since their assumption of their high offices .

By coming here for the payment of the ORG you demonstrate the depth of your faithfulness to our traditions . This sentiment is not CARDINAL of nostalgia , or so I presume , for you are at the same time resolutely looking to the future ; it is your firm will to play a full part in the progress of the modern world . The remarkable economic progress of the LOC during DATE bears witness to this , as does the modernisation of your institutions , which was embarked upon DATE and has gained new momentum in DATE .

Since our last meeting in DATE a decisive step has been taken for the future of the ORG . This relates to the constitution which the elected representatives of ORG have wished the Principality to be endowed with . At the last ceremony of the questia I stated my willingness to encourage developments in the internal and international order , where they responded to the legitimate aspirations of the people of GPE . In this spirit I naturally gave my approval and support to the unanimous request of ORG to draft a constitution with the agreement of ORG and the active support of the LOC representatives , whose high sense of the public interest I wish to salute here . Agreement was reached on the working method , the objectives and the structure of the draft constitution .

Thus there have already been written into the draft , on which much work has already been done , such fundamental principles as the establishment of a democratic sovereign ORG under the rule of law , recognition of the sovereignty of the people , respect for the territorial organisation of the parishes which has come down from history , the guarantee of rights and freedoms , the institution of a parliamentary system provided with rules to ensure the authority of the ORG and an effective control by ORG .

You are likewise resolved to simplify and unify the organisation of the legal system , while preserving the greatest respect for its independence , in order better to ensure and guarantee the rights of those subject to the law , taking as your inspiration the principles and rules defined in LAW ; no doubt while awaiting the accession of the Principality to that Convention .

I fully agree with these principles and I am delighted at the significant results obtained so far . I congratulate you on them .

I have confidence in your will and your capacity for carrying on the work of drafting the constitution at the speed at which it has progressed until now , thanks to the excellent spirit of co - operation which inspires the joint meetings of your delegation and those of the CARDINAL ORG . I am indeed convinced that we can bring this task to a successful conclusion with a view to swiftly and democratically putting in place the constitution drawn up jointly by ORG . This method of permanent consultation has demonstrated its effectiveness . The tripartite commission has met CARDINAL times since DATE , at the ORG of the Valleys in GPE . Its work , which has invariably been constructive , has made it possible to avoid misunderstandings and overcome all sorts of difficulties .

We do not conceal the facts , however . You are within sight of the goal , but the path to follow to reach it is still difficult . That is inevitable ; indeed , it is natural . Every innovative work , especially in the political field , is accompanied by hopes and fears , and arouses the necessary democratic debate , as well as legitimate ambitions and fervent personal commitment .

I do not think that anything will weaken your determination . Mountain - dwellers like you know how to save their breath and measure their step according to the length or difficulty of the ascent . You are experienced men , patient men . You know , and you do not need me to tell you , that once the way to the summit has been decided on by common consent , there is no choice other than to succeed or fail together .

You have very recently provided proof of your sense of your responsibilities by coming together despite your political differences so as the better to overcome the obstacles and attain the goal you have set yourselves .

The ambitious and proud people you represent know the value of effort and of perseverance . I can not encourage you too much to continue with your task , certain as I am that you will know how to legislate , govern , administer , give justice and in short assume full responsibility for the ORG , which will soon be completely devolved to you .

You will doubtless , at least to start with , have to act with boldness , but also with care to preserve the richness of your traditions and the identity of the parishes which originally joined together to form ORG .

In this task , on which considerable progress has now been made , I am with you so that social justice may prevail , for without that there can be no true economic progress , and so that the elected representatives of ORG may exercise fully the internal sovereignty of GPE , without which there can be no international recognition .

GPE and no doubt GPE , as your neighbours , will surely be the first to establish relations of friendship and co- operation with the future State of GPE .

The signing of the association agreement between the ORG and ORG was the first step towards the integration of the ORG into ORG . Other steps will follow . The interest shown by you in particular in the regulation of the banking profession and the control of international flows of money demonstrates your concern not to stay apart from the new forms of solidarity which are coming into being so that law and fairness can prevail in the international order .

You will henceforth be fully responsible for the ORG . The new institutions will be the cement , freely consented to , holding your nation together . Your freedom , given expression in elections , will strengthen your traditions and allow your country to join the international community while still affirming the power of its special features , its history and culture .

That , gentlemen , is what I wished to say to you . You will be so kind as to pass the essence of it on to the people of GPE , so now we have a few moments left in which to stay together and improve our mutual acquaintance , passing some time in the useful , fruitful and friendly way which our relationship demands . " ( NORP ORG , ORG of CARDINAL DATE ( CARDINAL ) )


Remainder inadmissible;Violation of Art. 6-1 and 6-3-c;Non-pecuniary damage - finding of violation sufficient

Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in ORG .

On CARDINAL DATE ORG instituted criminal proceedings in connection with the murder of Mr T.

On DATE the applicant was arrested by the police for hooliganism and taken to the police station . According to the applicant , the police severely beat him in order to force him to confess to the murder of Mr T. who had lived with him in the same apartment block .

On DATE the applicant was brought before ORG . The court found him guilty of an administrative offence ( hooliganism ) , committed on DATE at TIME , and ordered his administrative arrest for DATE . The applicant was then returned to the police station , where , according to him , the police ill - treated him again . On DATE he was questioned as a witness in connection with the murder of Mr T.

On CARDINAL DATE the applicant confessed to the murder and theft . He was questioned from TIME to TIME on suspicion of the murder of PERSON T. At TIME he was formally arrested as a suspect . The applicant also signed a waiver from a lawyer indicating that he did not need legal representation at that point and would decide on his representation later .

On CARDINAL DATE the applicant underwent a medical examination . In his opinion of CARDINAL DATE , the forensic expert noted that the applicant had abrasions on his wrists that could have been caused by handcuffs . He further had CARDINAL abrasions on his left elbow , one abrasion on the lower part of the abdomen and CARDINAL abrasion on his leg . According to the expert opinion , the applicant had maintained that the police had not applied force to him and that the abrasion on his abdomen had been caused by falling in his garage DATE prior to the examination . The expert concluded that the abrasions on the wrists could have been caused by handcuffs DATE prior to the examination and the other injuries had no relevance to the events indicated in the referral for the medical examination .

On DATE the applicant was charged with murder . During the questioning he refused the assistance of lawyer PERSON , who had been engaged by his father , and was questioned as an accused without a lawyer .

On DATE the criminal case against the applicant was transferred to ORG for further investigation . Shortly afterwards , the applicant received assistance from lawyer PERSON

On DATE the applicant was examined by a forensic expert who established that the applicant had a broken rib , a scar on his head and CARDINAL scars on his left arm , CARDINAL scars on his right arm and a broken tooth . On DATE another X - ray examination was carried out which found that the applicant ’s rib was not broken .

On DATE the applicant was examined by a dentist who established that the applicant ’s tooth had split into CARDINAL as a result of tooth decay .

On DATE the investigator reclassified the applicant ’s offence as murder for profit , which was punishable by life imprisonment and required the obligatory legal representation of the applicant .

On DATE the investigation was completed and the case against the applicant was referred to ORG .

On DATE ORG referred the case for further investigation . In so deciding , the court noted , in particular , that the applicant ’s allegations of ill - treatment had not been properly investigated and the time of death of PERSON mentioned in the medical forensic report did not correspond to the police version of the events . It also noted that , although the official time of the applicant ’s arrest as a suspect was TIME on CARDINAL DATE , the applicant had been arrested on DATE by the police officers who were investigating the murder of PERSON Furthermore , according to the testimony of the witnesses , the arrest had taken place at TIME , while the police had recorded that the applicant had been arrested for hooliganism at TIME

On DATE ORG upheld the decision of DATE with minor amendments .

On DATE a board of forensic experts conducted an additional forensic examination . The board established that the applicant had minor bodily injuries that might have been caused by handcuffs and a truncheon and it could not be excluded that they might have been inflicted during the period DATE . They further noted that following the conflicting findings of the previous X - ray examinations , the latest one had been conducted in the presence of testifying witnesses and the result showed no fractures in the applicant ’s ribs .

DATE the criminal case against the applicant was referred to ORG several times for examination and remitted by that court for further investigation .

On DATE the case was referred to ORG , which assumed jurisdiction over the case .

During the examination of the case the court rendered a separate ruling ordering the prosecutor to look into the applicant ’s allegations of ill - treatment . On DATE ORG refused to institute criminal proceedings against the police for lack of proof of a crime . The prosecutor referred to the testimony of the police officers , who had denied any ill - treatment of the applicant . The applicant did not appeal against that decision to the court but raised the issue of ill - treatment in the ensuing criminal proceedings against him .

On DATE ORG found the applicant guilty of murder and robbery and sentenced him to fifteen years’ imprisonment . The court based its findings on the confessions of the applicant made CARDINAL DATE and other pieces of evidence , including the testimony of PERSON . and Mr To . , who had seen the applicant shortly after the murder . The court rejected the applicant ’s allegations of illtreatment as unsubstantiated and noted that the applicant had voluntarily waived his right to legal representation at the initial stage of the proceedings .

NORP The applicant and his lawyers appealed . In their appeals they complained , among other things , that the court had based its finding on the applicant ’s self - incriminatory statements , that the applicant ’s right to defence had been violated , and that the court had assessed the evidence selectively . They further complained that the court refused to question a number of witnesses who could have proved an alibi for the applicant , or whose testimony needed clarification as to the exact time they had seen the applicant and the victim on DATE of murder . In particular number of witnesses saw the victim until TIME and they had not been questioned by the court or their testimonies had not been included in the criminal case - file . Furthermore , several witnesses saw the applicant near the house or at home for some time TIME when the applicant was coming and leaving .

On DATE ORG upheld the judgment of DATE . The court rejected the applicant ’s complaints . It noted that the time the witnesses had last seen the victim alive had been approximate and the murder , according to the applicant ’s confessions , had happened quickly , in a matter of TIME . In the court ’s opinion , the fact that the witnesses indicated by the applicant had not been summoned and questioned by the lower court did not require the quashing of the judgment , given that their testimony did not refute that the murder had been committed by the applicant . As to the confessions made by the applicant while under administrative arrest , the court noted that this fact did not render his confessions inadmissible and that not all of them had been made during the administrative arrest . As to unlawfulness of the actions of the police during the applicant ’s initial arrest , the court noted that it was for the prosecutor to look into the matter .

The relevant domestic law is summarised in the cases of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) and GPE v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


The applicant was born in DATE . He is a journalist and lives in GPE , GPE .

According to the applicant , on DATE he noticed CARDINAL municipal guards who were ordering street vendors to leave a square in GPE where selling was allegedly not authorised by the municipal authorities and to move their makeshift stands to a nearby market - place . The Government maintain however that the guards , who were acting on sanitary and traffic considerations , merely requested the vendors to move to a nearby market - place . The applicant further submits that he intervened , informing the guards that their actions had no legal basis and infringed the laws guaranteeing freedom in the economic field . He pointed out that the municipal authorities had not passed any resolution which would allow the guards to clear the square . The applicant observed that the guards were apparently acting only on the basis of verbal instructions from the mayor and urged the vendors to stay . The exchange between the applicant and the guards was witnessed by a group of bystanders .

Subsequently , on an unspecified date , the GPE district prosecutor ( Prokurator Rejonowy ) instituted criminal proceedings against the applicant . On DATE the district prosecutor lodged a bill of indictment with the Zduńska ORG ( Sąd Rejonowy ) . The applicant was charged with having insulted municipal guards while they were carrying out their duties and with having acted with flagrant contempt for legal order , an offence specified in LAW read together with LAW .

On DATE ORG convicted the applicant under LAW of LAW of verbally insulting CARDINAL municipal guards . It held that the offence was an act of hooliganism within the meaning of Article CARDINAL § CARDINAL of LAW . The applicant was sentenced to CARDINAL months’ imprisonment suspended for DATE and a fine of MONEY ( PLZ ) . He was also ordered to pay the sum of PLZ CARDINAL to charitable institutions and court costs of PLZ CARDINAL .

On an unspecified date the applicant filed an appeal against this judgment , submitting that his conviction was based on insufficient evidence . He pointed out that ORG had failed to establish precisely what defamatory words had been used and had only found that the applicant had called the guards “ ignorant ” . This word should not have been regarded as an insult but as an acceptable criticism of public servants . The applicant further contended that the trial court had wrongly applied the law since , contrary to its findings , it was evident that his acts had not involved any act of hooliganism as he had only intended to protect street vendors from illegal actions of the municipal guards .

NORP On DATE ORG ( Sąd Wojewódzki ) quashed the part of the contested judgment relating to the sentence of imprisonment and the order to pay PLZ CARDINAL,CARDINAL to charitable institutions . However , it upheld the fine of PLZ CARDINAL and reduced the court costs to the sum of PLZ CARDINAL . ORG was of the opinion that the trial court had wrongly considered that the offence at issue had been hooligan in nature as the applicant ’s motive had been to defend street vendors against the acts of the municipal guards which he had considered illegal . Therefore the applicant had not acted as he did without any justifiable motive , which was a prerequisite for finding that the offence was an act of hooliganism .

Furthermore , ORG agreed with the applicant that the ORG municipal council had not passed any resolution prohibiting the sale of merchandise on the streets and that no public notice to this effect had been posted at the material place and time . Therefore , there were no grounds for the trial court ’s finding that the applicant had demonstrated flagrant contempt for legal order .

Finally , ORG observed that the judgment had not mentioned the abusive words used by the applicant . Nevertheless , it considered that there was sufficient evidence in the case file to conclude that the applicant had in fact insulted the guards by calling them “ oafs ” and “ dumb ” ( “ ćwoki ” and “ głupki ” ) . These words were widely considered to be offensive and by using them the applicant had exceeded the limits of freedom of expression . The court found that the resulting conviction was rightly imposed under LAW whose object was to ensure that civil servants were not hindered in carrying out their duties .

At the relevant time the legislation provided as follows :

Article CARDINAL of the Criminal Code :

“ Anyone who insults a civil servant ... during and in connection with the carrying out of his official duties is liable to up to DATE imprisonment , to restriction of personal liberty or to a fine . ”

“ NORP znieważa funkcjonariusza publicznego … podczas i w związku z pełnieniem obowiązków służbowych , podlega karze pozbawienia wolności do lat CARDINAL , ograniczenia wolności albo grzywny . ”

LAW :

“ If a perpetrator has committed a premeditated offence of a hooligan nature , the court shall impose a sentence of imprisonment not lower than one and a CARDINAL times the minimum sentence provided ... ”

“ NORP sprawca dopuścił się umyślnego występku o charakterze chuligańskim , sąd wymierza karę pozbawienia wolności nie niższą od dolnego zagrożenia zwiększonego o połowę … ”

LAW of LAW provided that an offence should be regarded as being of a hooligan nature if the perpetrator acted in public , without any justifiable motive or with an obviously unjustified one , thus demonstrating flagrant contempt for legal order .


Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings

Mr PERSON , an agricultural engineer , and his wife PERSON own several parcels of land in the municipality of PERSON . On the land there is a farm and a gravel pit . The parcel where the gravel pit is located consists of QUANTITY and is called ORG CARDINAL:CARDINAL . It was specifically created in DATE from parts of the other properties with a view to the exploitation of the pit .

When PERSON mother bought the land in DATE the commercial exploitation of the gravel pit had been at a standstill since DATE . In the meantime , gravel had been taken only for use on the farm . The PERSON were eager for exploitation to resume and , on DATE , they signed a licence agreement with CARDINAL companies ( " the Jehanders " ) , granting them , for an DATE fee , the exclusive right to extract gravel from the pit for DATE . The PERSON subsequently acquired several other gravel pits in the vicinity and thus obtained , so the applicants allege , a quasi - monopoly on gravel production in the region .

In DATE a prohibition on the extraction of gravel without a permit was introduced through an amendment to LAW ( naturskyddslagen CARDINAL:CARDINAL ) . On DATE ORG ( länsstyrelsen ) of GPE granted PERSON parents the necessary permit . This provided , inter alia , that exploitation had to be in conformity with a plan drawn up in DATE ; in particular , it had to be carried out in CARDINAL stages , each of which should not exceed DATE . In addition , restoration works had to be carried out continuously during each stage and financial security lodged to cover the costs thereof .

On DATE Mr Fredin acquired CARDINAL of the property by way of a gift from his mother .

On DATE an amendment to LAW DATE ( naturvårdslagen CARDINAL:CARDINAL - " LAW " ) - which had left unaffected the need for a permit - empowered ORG to revoke permits that were DATE ( see paragraph CARDINAL below ) .

On DATE the applicants bought the remainder of the property , which thenceforth belonged as to CARDINAL to Mr Fredin and as to CARDINAL to his wife . ORG was informed of the change in ownership .

Despite a number of requests over DATE , the PERSON had , at the time of the ORG purchase , still not put the gravel pit to commercial use . The PERSON accordingly instituted court proceedings for breach of contract , but the dispute was resolved by a friendly settlement according to which the licence agreement was deemed to have terminated with effect from DATE .

On DATE the applicants requested that the permit to take gravel should be formally transferred to them . With the consent of PERSON parents they began to exploit the pit in DATE , partly through a new licensee . At about this time ORG offered to redeem the exploitation permit from the applicants for a sum , according to them , of MONEY . However , the applicants did not accept the offer . As from DATE they conducted part of the business themselves through ORG , a limited liability company they owned .

On CARDINAL DATE ORG granted the applicants an exemption from the general prohibition in the DATE Act against building near the seashore and allowed them to build a quay with shiploading equipment . The exemption was valid until further notice , but not for longer than the permit to exploit gravel . The ORG stated that the " decision [ did ] not imply that any position [ had ] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property " . The applicants built the quay at a cost of MONEY and also invested MONEY in the gravel exploitation business over the period from DATE to DATE .

On DATE ORG asked the applicants to lodge a financial security of MONEY to cover restoration costs , this amount being subsequently increased to MONEY .

After the applicants had provided the security required , ORG , by " partial decision " of DATE , amended its decision of CARDINAL DATE ( see paragraph CARDINAL above ) by transferring the permit to them . ORG added that it planned to issue new directives concerning restoration work and that , in view of the DATE amendment of LAW ( see paragraph CARDINAL above ) , it intended to re - examine the permit question in DATE with a view to a possible termination of the activities .

On DATE ORG notified the applicants that , in the interest of nature conservation , it was contemplating amending the permit so as to provide that exploitation of the gravel pit should cease by DATE .

In a memorandum dated DATE , ORG indicated CARDINAL possible ways of discontinuing the exploitation . CARDINAL was to stop extraction as soon as possible because the environment was being damaged and there was already a satisfactory supply of gravel in the region . The other was to allow the exploitation to continue for DATE , thereby making it possible to give the area a natural shape .

The memorandum was submitted to ORG ( naturvårdsverket ) and to the municipality of PERSON . On DATE the ORG replied that it favoured the first alternative and that it considered that a reasonable exploitation - time had been afforded as the permit had been valid for DATE . On DATE the municipality expressed the opinion that a certain closing - down period was preferable as it would facilitate the restoration of the landscape .

In a new " partial decision " of DATE , ORG ordered , inter alia , that :

( a ) the exploitation of gravel should cease within DATE , i.e. by DATE , by which time the area should also be restored ;

( b ) as from DATE of the decision further extraction from certain parts of the pit be prohibited ;

( c ) before DATE the applicants should increase the security to MONEY , to cover possible restoration costs resulting from the growing activity in the pit ; they should also draw up a new work plan , so that the ORG could fix the final conditions for the extraction and restoration works .

The applicants appealed to the Government , claiming that :

( a ) ORG decision was in part based on insufficient scientific material ;

( b ) it should not have followed the opinion expressed by the municipality of PERSON ( see paragraph CARDINAL above ) , in view of that opinion ’s limited scope ;

( c ) its decision , and also the opinion of ORG , should have been based on the views of a geological expert ;

( d ) it had not given the applicants’ interests sufficient consideration and had not granted a reasonable closing - down period ;

( e ) the order to submit a new extraction plan and to lodge security of MONEY constituted a financial penalty ;

( f ) the prohibition on extraction from parts of the pit was unlawful as it amounted to a closing - down of the activities ;

( g ) pursuant to LAW , as interpreted in the light of LAW DATE ( miljöskyddslagen CARDINAL ) and LAW ( vattenlagen CARDINAL:CARDINAL ) , they had a protected right to exploit gravel for DATE from the transfer of the permit on DATE .

On DATE ORG submitted an opinion on the appeal , stating amongst other things that it had known , from its contacts with the PERSON ( see paragraph CARDINAL above ) , that no exploitation of gravel was imminent .

In a decision of CARDINAL DATE ORG ) dismissed the appeal , stating that they concurred with ORG assessment . They ordered , however , that the validity of the permit should be extended to DATE and that the security should be lodged on CARDINAL March CARDINAL at the latest .

On CARDINAL DATE ORG adopted a restoration plan for the pit .

Before the expiry of the permit the applicants twice requested new permits , but to no avail . The last request was rejected by ORG on CARDINAL DATE . The ORG appeal to the ORG was dismissed on DATE , although the validity of the permit was extended until DATE .

On DATE extraction of gravel from the pit ceased . The applicants had by then almost terminated the first of the CARDINAL exploitation stages provided for in the plan attached to the permit of DATE ( see paragraph CARDINAL above ) .

On DATE ORG requested the public prosecutor to institute criminal proceedings against PERSON for non - compliance with LAW , in that he had not restored the gravel pit as provided for in the permit . These proceedings are still pending and the restoration work has not yet been carried out .

On DATE ORG rejected a request by the applicants for a special extraction permit in order to enable them to comply with the DATE restoration plan ( see paragraph CARDINAL above ) . Their appeal to the Government was dismissed on DATE , and their application for judicial review under LAW ( lag om rättsprövning av vissa förvaltningsbeslut GPE ) , which entered into force on DATE , was rejected by ORG on DATE . These proceedings are not the object of the present complaint .

As regards the impact of the revocation of the permit on the value of their property and of their wholly - owned licensee , ORG , the applicants have referred to CARDINAL certificates .

According to the first , issued by Mr PERSON , a consultant , on CARDINAL DATE , it appears from the accounts of the applicants’ company that it would become insolvent without the income from the pit .

The second certificate , drawn up on DATE by Mr PERSON , an economist , states that the ORG company would have had an estimated market value of MONEY in DATE , had the applicants been able to extract gravel from DATE onwards without any interference by the authorities . Mr NORP points out that this is not the company ’s liquidation value .

In the third certificate , dated DATE , Mr PERSON , a land - surveyor at ORG ( överlantmäterimyndigheten ) , notes that , as a result of the revocation of the permit , the gravel pit was considered in DATE to be worth MONEY for general property - taxation purposes . Mr PERSON ’s own assessment , made on the assumption , inter alia , that the extraction of gravel would have continued according to the DATE permit , concludes that the estate ’s market value decreased by MONEY as a consequence of the revocation . Taking into account Mr ORG ’s valuation , the total loss suffered by the applicants is estimated at MONEY .

The applicants have also submitted a report by Mr PERSON , a consultant , according to which , in a large number of revocation cases concerning businesses that had been carried on for DATE , ORG had not ordered the restoration of the gravel pits at issue . The ORG was also said to have given the holders of the permits in question the opportunity of obtaining new ones , should the supply of gravel on the market decrease . Mr PERSON noted that in these cases the permits had been held by CARDINAL companies , including CARDINAL of the Jehanders ( see paragraph CARDINAL above ) . He concluded that the ORG ’s decision concerning the applicants’ permit was exceptional , in that it terminated an ongoing profitable business .

The basic regulations on the protection of nature are laid down in the DATE Act .

According to section CARDINAL of the Act , everyone must show respect and circumspection in his or her dealings with nature . In addition , all necessary measures have to be taken to limit or counteract any damage to nature which is bound to result from any works undertaken or otherwise .

Section CARDINAL provides that , in decisions on questions relating to nature conservation , other public and private interests must be duly considered .

LAW prohibits , inter alia , extraction of gravel for purposes other than the domestic needs of the landowner without a permit from ORG . The section also specifies that :

" ORG may require a party applying for an exploitation permit to submit , on pain of the application being rejected , material showing the need for the extraction and a sufficiently detailed plan for the activities . The permit shall be made subject to such conditions as are necessary to limit or counteract the harmful effects of the enterprise on the natural environment . In the absence of special reasons to the contrary , a permit shall be valid only if sufficient financial security is lodged to ensure that the conditions prescribed are actually fulfilled . If the security given proves to be inadequate , ORG may order that the permit shall not become effective until additional security has been lodged .

If a prescribed measure is to be taken by someone other than the landowner , the latter must allow it to be carried out .

If DATE have elapsed since an exploitation permit acquired legal force , ORG may revoke the permit completely or in part or may make its renewal subject to revised conditions . If it becomes apparent that the conditions laid down do not sufficiently limit or counteract the damaging effects that the activities may have on the natural environment , ORG may , before the expiry of the stated period , make the permit subject to such additional conditions as may be necessary . "

The last sub - paragraph was added on DATE . Previously an exploitation permit could not be revoked without compensation being paid to the landowner if the prescribed conditions had been complied with . According to the transitional provisions , the DATE period was , as regards permits valid on DATE , to be calculated as from that date . The amendment also repealed certain provisions whereby a landowner could be granted compensation if he was refused a permit .

Section CARDINAL ( CARDINAL ) of the LAW provides that an appeal lies to the ORG against a decision taken by ORG . At the time of the final decision regarding the revocation question ( DATE , see paragraph CARDINAL above ) , the Government ’s decisions were not subject to any judicial review . However , since the entry into force , on DATE , of the Act on Judicial Review of ORG , the lawfulness of some decisions by the ORG may be challenged before ORG .


CASE OF JULY AND SARL LIBERATION v. FRANCE [Extracts]

Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa

The first applicant , Mr PERSON , was born in DATE and lives in GPE . He was the publication director of the national DATE newspaper ORG . The second applicant , the private limited company ORG , was represented by Mr DATE , who was its manager at the time .

On DATE Mr PERSON , a NORP judge who at the time had been seconded as technical adviser to the NORP Minister of ORG , was found dead QUANTITY from the city of GPE . His CARDINAL - naked and partially burnt body was lying QUANTITY a remote road . In DATE the investigation by the local gendarmerie concluded that he had committed suicide by self - immolation .

NORP In DATE a judicial investigation was opened in LOC “ to establish the cause of death ” , and the judge ’s body , on its repatriation to GPE , was interred in GPE . In DATE an autopsy was carried out on the judge ’s remains and its conclusion , notified to his widow on an unspecified date , was that he had committed suicide after dowsing himself in petrol .

In DATE the widow of the deceased judge , disputing that finding , filed a complaint as a civil party against a person or persons unknown for premeditated murder . In DATE a judicial investigation was opened on that basis . In DATE a private forensic report , commissioned by ORG , concluded that in view of the total absence of burn residue in the judge ’s lungs , he must already have been dead when his body caught fire . The judicial investigation was subsequently transferred to GPE , where the case was assigned in DATE to CARDINAL investigating judges at the GPE tribunal de grande instance , namely PERSON , assisted by Mr GPE .

In DATE the investigating judges visited GPE without the civil parties .

While PERSON was challenging the suicide conclusion towards which the judicial investigation seemed to be heading , a witness – a former member of ORG who had found asylum in GPE – came forward in DATE and lent support to the theory of premeditated murder , implicating the former chief of staff of the President of GPE , the then incumbent President PERSON . His testimony proved highly controversial and was widely reported in the press and other media . In DATE the investigating judge , Ms PERSON , interviewed this witness in GPE , after which he challenged her impartiality , alleging that she had put pressure on him to withdraw his testimony . Lastly , in DATE , the investigating judges , accompanied by the director of ORG and ORG of GPE , paid another visit to GPE in order to stage a reconstruction at the scene , without the civil parties being present . They had requested to attend but had been refused visas . In the context of the judicial investigation in respect of the premeditated murder charge , CARDINAL judges’ unions , including ORG – “ the ORG ” ) , had applied on DATE to be joined to the case as civil parties . For that purpose , the Chairman of the ORG , Mr ORG , sent a letter to Ms PERSON and attached the ORG ’s decision taken by a vote of CARDINAL DATE to apply for civil - party status in the proceedings . The decision was signed by PERSON , in his capacity as a member of the ORG ’s national council .

It was in these circumstances that , on DATE , a press conference was held in GPE for the purpose of publicising a request sent to the Minister of Justice by PERSON lawyers for an investigation to be carried out by ORG concerning the above - mentioned investigating judges . During the press conference PERSON , her lawyers Mr GPE and Mr de Caunes , and a number of judges acting in the context of their union duties made public certain questions and criticisms about the way the judicial investigation was being handled .

On DATE the national DATE newspaper ORG published an article entitled “ Death of a judge : widow attacks judges and police ” . This article , signed by PERSON , reported on the press conference held DATE .

The article in issue read as follows :

“ ‘ With CARDINAL death , CARDINAL orphans and a widow , what more do they want ? Who are they protecting ? I do n’t understand . I no longer understand anything.’ DATE after the discovery of his charred body on DATE in GPE , PERSON still has no idea ‘ why or how’ her husband , Judge PERSON , died . Challenging the official and increasingly unsound version that he committed suicide , she has made public a request for the case to be investigated by ORG at a time when the investigating judges , PERSON and PERSON , have actually just come back from GPE .

PERSON . Sent DATE to the Minister of Justice by her lawyers PERSON and ORG , the request concerns the conditions in which the judicial investigation is being carried out . She complains that the judges showed bias in the examination of a witness , a former member of ORG , who had come forward to lend support to the murder theory .

At her press conference in GPE DATE , PERSON was flanked by PERSON , Chair of ORG and Prosecutors [ Association professionnelle des magistrats ] ( ORG , right - wing ) , and PERSON , ORG [ ORG magistrature ] ( ORG , left - wing ) , which are civil parties in the case together with ORG and Judges [ Union syndicale des magistrats ] ( ORG , moderate ) .

Accumulation . The conduct of the judicial investigation in the GPE case had been ‘ ORG [ rocambolesque ] , PERSON alleged , while PERSON denounced ‘ the accumulation of anomalies’ . Herself a judge , PERSON commented DATE that her ‘ husband ’s character [ had ] been investigated , in the search for evidence of paedophilia and corruption’ , adding ‘ they ’ve tried to dig up a mistress , they ’ve gone through his accounts – and I ’m talking about the action of the police’ .

As regards the judges’ action , her comments were equally as harsh , because they have been slow : it was DATE before an autopsy was performed , DATE before they obtained the report , DATE before the first visit of a judge to GPE , DATE before testimony was taken from a witness ( except from herself and a chaplain ) , DATE before a second forensic report was ordered . At the start of the judicial investigation the local judges ‘ questioned our cleaning ladies and the children in the street . But not my husband TIME ( Judge PERSON had been seconded to the Minister of Justice of GPE ) . The reconstruction ? PERSON says she ‘ does n’t understand’ it : ‘ my husband is supposed to have climbed down a QUANTITY cliff , on foot , covered in PERSON . ‘ Holding a lighter in his hand , because he was in his ORG adds PERSON .

Flood . Then there are some obvious gaps . Her husband ’s medical records seem to have ‘ disappeared’ in a ‘ highly selective flood’ , because the same hospital still has the records for CARDINAL of the couple ’s children . Gone too are the military checkpoint and register of persons entering the secure area , QUANTITY north of GPE , where PERSON body was found .

In their request for an inspection , the lawyers accuse the CARDINAL judges of ‘ discussing more with the media than with the civil party’ . They claim that they read on DATE in [ the newspaper ] ORG that the CARDINAL judges were leaving for GPE . On TIME they saw , on the programme Capital on [ the NORP television channel ] MCARDINAL , PERSON taking part in a reconstruction in another case in GPE [ concerning the murder of a NORP serviceman ] , with journalists present .

When contacted DATE , neither the ORG , nor PERSON , who in the meantime had returned to GPE , wished to comment . But the PERSON embassy in GPE was quick to put things straight . It explained DATE in a press release that the CARDINAL judges’ assignment ‘ will mainly have the result of dispelling any PERSON after ‘ unfounded accusations’ . ”

On DATE the investigating judges concerned brought proceedings against Mr DATE , in his capacity as publication director , and the newspaper ORG , for being civilly liable , directly summoning them to appear before ORG for committing the criminal offence of public defamation against public officials , as provided for by sections CARDINAL , PERSON ) and CARDINAL ) of the LAW of DATE and punishable under LAW of that LAW . This was on account of the publication of the newspaper article of which the following CARDINAL passages were considered defamatory :

“ CARDINAL . PERSON . She ( PERSON ) complains that the judges showed bias .

The conduct of the judicial investigation had been ‘ ORG ( rocambolesque ) , PERSON alleged .

While PERSON denounced ‘ the accumulation of anomalies’ .

NORP Because they [ the investigating judges ] have been slow . ”

NORP In DATE the case was withdrawn from the CARDINAL investigating judges and transferred to another investigating judge .

In a judgment of DATE , ORG dismissed the request to include in the proceedings the whole of the file from the judicial investigation that had been criticised . The case was set down for hearing successively on DATE , DATE and DATE . At that last hearing , the accused , Mr DATE , who had initially called a number of witnesses in the context of his offer to adduce evidence , finally refrained from relying on the veracity of the defamatory comments and used the defence of good faith .

In a judgment of DATE , ORG acquitted the CARDINAL defendants . The court began by setting out as follows the judicial context in which the article had been published :

“ PERSON , a judge , died in GPE where he had been posted for DATE , on CARDINAL or DATE .

The circumstances of the death of PERSON , whose charred body was found at the bottom of a cliff , with a lighter in his hand , have not been elucidated to date . ...

In the judicial investigation which has since been opened on a charge of premeditated murder , against a person or persons unknown , it appears that PERSON has for DATE refused to accept the theory of suicide and supports the hypothesis of a political crime potentially implicating senior officials in GPE .

At the time of the publication of the offending article , the case had already received a certain amount of media coverage because of the broadcasting on [ the NORP television channel ] TFCARDINAL of an interview with a witness lending support for the criminal hypothesis .

It was in DATE that the investigating judges learnt from an ORG newswire of an application from PERSON lawyers to have the case withdrawn from them .

DATE before the press conference was held , the CARDINAL investigating judges , together with an expert , went to GPE to carry out acts within their remit in the absence of the civil party and her lawyers , who had not been invited to attend .

It was following this investigative measure , of which the civil party and her lawyers were very disapproving , that a press conference – without [ the investigating judges ] being notified DATE was held on DATE and gave rise DATE to an article in the DATE newspaper ORG . ... ”

The court then considered that CARDINAL of the offending passages were not defamatory . As regards the judicial investigation being “ rocambolesque ” ( farcical ) , the court observed that this adjective was derived from “ Rocambole ” , the name of a character featuring in serialised novels by ORG , and that it was used to describe a farcical situation , full of extraordinary ins and outs , as one might find in those novels . After noting that Mr Matagrin had , in a number of letters , contrary to the various statements given during the proceedings , denied using that term , but had not questioned the good faith of the journalist who wrote the article , the court found that the offending word was unquestionably polemical in nature but did not constitute in itself an attack on the honour and reputation of judges and that , whilst the expression undermined the image of a dispassionate judicial system , it was an example of polemical language falling within the free democratic debate surrounding judicial life that the judiciary could not oppose , unless CARDINAL were to prohibit any criticism about the course of a judicial investigation . The reference to an “ accumulation of anomalies ” was found not to be related to the person in charge of the judicial investigation but to the anomalies identified in the case file and strongly conveyed the dissatisfaction of the civil parties . As to the “ slowness attributable to the investigating judges ” , the court considered that this criticism fell squarely within the public debate on the functioning of the judicial system and on its sluggishness , adding as follows :

“ ... judges have to accept free public scrutiny , and more specifically that of parties to proceedings and of the press , vis - à - vis their action , provided that criticism – harsh though it may be DATE does not contain any precise accusation impugning their intellectual honesty , professional integrity or devotion to public service . In the present case there can be no serious charge – to the extent of falling within the scope of criminal law – on account of the reproduction of a complaint against judges for being slow that was made at a press conference held DATE after the discovery of Mr GPE ’s body , and during which the judge ’s widow lamented that she still had no idea how or why her husband had died . ”

Accordingly , the only passage regarded as manifestly damaging to the judges’ honour and reputation was the one that concerned the civil party ’s complaint that “ the judges had shown bias ” .

NORP However , the court accepted the applicants’ defence of good faith , having regard to the CARDINAL conditions to be satisfied ( pursuit of legitimate aim , absence of personal animosity , use of prudent and dispassionate language , requisite quality and seriousness of investigation ) , considering that the newspaper , by reporting on the criticism of the judicial investigation into the death of Judge GPE , had simply been fulfilling its mission to inform the public . The court unequivocally recognised the legitimacy of the aim pursued ( interest for public opinion , publicising of request for inspection by judicial inspectorate ) and the absence of personal animosity . As regards the use of prudent and dispassionate language , the court , in view of the blatant antagonism between the civil parties and the investigating judges , remarked upon the vehemence of the comments , but considered that the journalist had taken the necessary distance by using the conditional tense in the only passage recognised as defamatory . Finally , as regards the last requirement , the court found that , by refraining from approving the offending expressions reported and by taking the requisite distance , the newspaper had avoided creating any confusion in readers’ minds between the speaker ’s original comments and the analysis by that newspaper .

In submissions filed with ORG of ORG , on an appeal by the applicants , the civil parties relied on the CARDINAL allegations already examined and sought recognition that they were defamatory . They further complained that the court had failed to impugn the lack of prudent and dispassionate language , in so far as journalists were supposed to convey objective and documented information and as they had a duty of preliminary investigation in order to ensure the reliability and accuracy of their information . The public prosecutor , for his part , left the matter to the discretion of ORG .

At the hearing set down for DATE , ORG adjourned the case until a hearing of DATE . In a judgment of DATE , ORG of ORG , presided over by Judge PERSON ( with Judges PERSON and PERSON also on the bench ) , partly set aside the judgment of acquittal , finding defamatory , in addition to the allegation of bias on the part of the judges , the accusation that the “ conduct of the GPE investigation had been ‘ ORG ( rocambolesque ) ” , and ruling as follows :

“ It appears from the examination of witnesses before the court and from the attestation provided by PERSON , ORG and Prosecutors [ Association professionnelle des magistrats ] , that he had used this word in a quite different formulation , which had not reflected an unequivocal desire to denounce his colleagues’ manner of investigation .

That being said , the adjective ‘ ORG [ rocambolesque ] , when applied to the manner in which a judicial investigation was conducted , went beyond the context of a simple debate since its aim was to denounce a practice that was unconventional and bizarre , of course alluding to the adventures of an unscrupulous and scheming character who lived by his wits , but above all implying that the judicial investigation had been flying in the face of common sense , without any rationality . ”

As to the allegations concerning an “ accumulation of anomalies ” and “ slow judges ” , the court endorsed the grounds adopted by the court below and upheld the judgment in that respect .

ORG also set aside the judgment appealed against in so far as it had admitted the first applicant ’s defence of good faith , finding as follows :

“ As to the defence of good faith

... The parties agree that the newspaper ORG was pursuing a legitimate aim in informing its readers about a press conference on a subject that had taken on a national dimension on account of its developments ; furthermore , [ the investigating judges ] have never claimed that the article ’s author showed any personal animosity towards them .

In addition , it should be observed , first of all , that LAW of LAW provides , with regard to the freedom to hold opinions and the freedom to impart information , that the exercise of those freedoms may be subject to certain formalities , conditions , restrictions or penalties .

In the present case , the relative ‘ inexperience’ alleged by the journalist , claiming that reporting on court cases was not her strong point , can not seriously be argued since she had already dealt with this subject .

The author clearly preferred not to report on the subject in the form of an interview and opted for a compromise solution involving the use of inverted commas , which considerably facilitated her task .

She had a duty to assess the full impact of the most suggestive terms used , such as ‘ GPE and ‘ ORG , and of their visual prominence in the article .

She was not unaware of the fact that the criminal case about which the press conference was held had entered into a phase of acute conflict , involving a particularly serious attack on the investigating judges ; in choosing a certain manner of informing her readers , albeit indirectly , about the status of an ongoing judicial investigation of a particularly sensitive nature , the journalist had a duty to take certain precautions and to carry out a particularly serious investigation , since she could not have been unaware of the aim pursued by the civil parties .

In particular , by distorting PERSON comments , to give them a completely different emphasis , the author of the article acted irresponsibly .

Moreover , she can not seriously claim not to have managed to get in contact with the CARDINAL judges concerned : PERSON , an investigating judge ’s assistant , has stated that she can not remember any call from the journalist . In any event , the journalist , who had some knowledge about judicial issues , was under an obligation , in view of the deadline for the paper to go to press , to gather various items of information beforehand , even before the press conference , and also to indicate in her article that , in DATE , she would ensure that the persons thus criticised had the opportunity to reply .

By choosing , as to the form , to report it by adopting a style other than that of an interview , the author could not have been unaware that the parts of the article not placed between inverted commas could be attributed to her .

Contrary to the reasoning given on this point by the courts below , the impugned article does not strike a balance between the respective positions . To be sure , by failing to ask either the public prosecutor ’s office or the main parties concerned about the factors that might have affected the progress of the investigation , the journalist logically did not put herself in a position to strike such a balance , in particular as in the presentation of the article ’s paragraphs a significant amount of space was left for the positions of other judges representing their unions .

This flagrant breach of the duty to ensure accuracy , seriousness and prudence , with mistakes in the dates , can not be justified by the alleged urgency . The publication director , being well - informed about issues of society , had an obligation to scrutinise the article more stringently , especially as he was aware of the author ’s relative lack of experience . ... ”

ORG found the first applicant guilty and held that the second applicant was civilly liable . It gave the first applicant an indictable - offence sentence in the form of a fine of MONEY ( ORG ) ( CARDINAL euros ( ORG ) ) , also awarding FRF CARDINAL in damages to each of the civil parties , and ordered the publication in the newspaper and another national DATE of the operative provisions of the judgment , for a cost not exceeding ORG CARDINAL ( about EUR CARDINAL,CARDINAL ) . It further ordered the applicants , jointly and severally , to pay the civil parties FRF CARDINAL ( QUANTITY ) for costs not covered by the ORG .

The applicants appealed on points of law , relying in particular on LAW .

In a judgment of DATE , ORG dismissed the appeal on points of law against the judgment of DATE , ruling as follows :

“ In refusing to accept the defendant ’s defence of good faith , after rightly finding defamatory the criticism of the investigating judges for conducting their investigation in a biased and farcical manner , the second - instance court gave its ruling on the grounds now set out by the appellant .

Having regard to those grounds , as they stand , ORG justified its decision under sections CARDINAL and CARDINAL ) of LAW of DATE and under LAW of LAW .

Only attacks of a theoretical and general nature may benefit from the freedom attached to criticism of the operation of the basic institutions of the ORG .

Whilst it is legitimate to inform the public about the operation of the courts , the aim thus pursued does not exempt journalists from the duties of prudence , caution and objectivity in the expression of thought ; the right of free criticism can not extend to personal attacks . ... ”

In parallel to those proceedings , Mr ORG , the lawyer acting for PERSON , was prosecuted for aiding and abetting public defamation against the investigating judge responsible for the “ GPE case ” at the material time , following the publication by the national DATE newspaper ORG , which was prosecuted as the principal offender , of an article dated DATE entitled “ GPE : Judge PERSON ’s impartiality called into question ” .

In a judgment of ORG dated DATE , he was found guilty , given an indictable - offence sentence in the form of a fine and ordered to pay damages . In the appeal proceedings , before ORG , Mr ORG found out that the judge presiding over ORG of that court was Judge PERSON . Acting as counsel for PERSON , and thus having access to the investigation file , he found , on reading the attendance list for the meeting of the ORG ’s national council on DATE when its members had decided to apply to join the GPE proceedings as a civil party , that Judge PERSON had signed it in his capacity as a member of the national council . On CARDINAL DATE Mr ORG filed an application with the President of ORG seeking the judge ’s replacement , arguing that the case could not be heard by a judge who had personal knowledge of the GPE file and who had participated in his union ’s decision to join the proceedings as a civil party .

That application was not examined on the merits . In an order of DATE , ORG found that the claim had become devoid of object as Judge PERSON had withdrawn for “ personal reasons ” which prevented him from sitting in the appeal hearing set down for DATE . These facts were the subject of the application in GPE v. GPE ( no . CARDINAL ) , which on DATE was declared inadmissible for lack of victim status by a committee of CARDINAL judges set up in accordance with LAW .

On DATE ORG published an article entitled “ Appeal for the truth about the murder of Judge PERSON :

“ A NORP judge was murdered on DATE in GPE . For fear of losing a NORP military base and the capacity to intervene in a geopolitically sensitive area , everything has been done to make this crime look like suicide . For DATE now , there has been no end to the pressure and manipulation designed to cover up the truth . Only the courage and determination of PERSON , and the support she has received , have prevented this case from being swept under the carpet once and for all .

On DATE , QUANTITY from GPE , the partly burnt body of the NORP judge PERSON , adviser to GPE ’s Minister of Justice , was discovered at the foot of a cliff . This death soon became CARDINAL of those ‘ exquisite corpses’ about which the official truth must hastily be announced , that of suicide . Unfortunately for the instigators of this theory , the various shortcomings in the initial investigation ( no autopsy , missing X - rays , etc . ) and judicial investigation DATE , as revealed by the judge ’s widow , PERSON , and her lawyers , with the support of ORG [ PERSON magistrature ] , have been publicly denounced . The withdrawal of the case from the CARDINAL investigating judges in DATE was to mark a turning point in the judicial investigation .

The hypothesis that PERSON was murdered has now been confirmed by the developments in the investigation and by forensic medical and technical examinations following a fact - finding visit to the scene in DATE . The discovery of a head injury caused by a dangerous instrument and an injury sustained in self - defence , namely a fractured arm , together with the detection of a second inflammable liquid from a container other than the jerrycan found at the scene , clarify once and for all that it was murder .

Reasons of State versus Justice

Progress in the judicial investigation has also been delayed and hindered by the government ’s direct acts of blockage and pressure when requests have been made for the declassification of documents held by the ORG [ the NORP external intelligence agency ] and the ORG [ the NORP domestic intelligence agency ] . Those attempts at obstruction , combined with a barrage of legal actions against PERSON lawyers , ORG and material witnesses who have dared to implicate the President of GPE ’s entourage , suggest that further intimidation can be feared . A judicial investigation was opened in GPE in DATE for the offence of procuring a person to give false evidence , after detailed statements by PERSON witnesses implicating high - ranking officials in the country , especially the current ORG and the Head of ORG .

The announcement on DATE by ORG that the NORP case file was to be handed over to the PERSON authorities , in breach of the principle of the separation of powers , did not meet with any protest from the Minister of ORG , PERSON , whereas the investigating judge had previously denied the request of his PERSON counterpart , taking the view that it would be an abuse of procedure in view of the possible involvement of PERSON officials . The new Minister of ORG has now undertaken not to hand over the case file against the will of the investigating judge . It is a shame that such mobilisation was necessary simply to get the Minister of Justice ... to observe the law .

This cynicism was taken a step further with the reception of the Djiboutian Head of ORG by PERSON on DATE . Whilst PERSON had been summoned to appear as a witness by the judge investigating Judge PERSON ’s murder , ORG let it be known that he did not need to respond to the summons because of his immunity as Head of ORG . For his part , PERSON openly renewed his support for President PERSON and called the courts to order , drawing attention in particular to the excessive length of the proceedings .

Borrel investigation : mission impossible ?

Another cause for concern is the increase in criminal proceedings against journalists and the press for being ‘ guilty’ of countering the official position that prevailed until DATE that of suicide . In addition to the barrage of actions against ORG , ORG , GPE , FAC and the PERSON enchaîné , in DATE there were CARDINAL acts of censorship , this time by the administration of an emblematic radio station – with its international audience – RFI [ ORG ] .

Information on Franco - African affairs is not part of a ‘ reserved domain’ of communication emanating from ORG or the President . The NORP government must now refrain from any attempt to restrict the freedom of journalists to report on developments in the GPE case .

Everything must now be done to allow the investigating judge to pursue his enquiries without having to fear government pressure . ORG itself must remove the various obstacles in the proceedings , in particular by handing over to the investigating judge all documents in the authorities’ possession that may have a bearing on this murder case . ”

On DATE PERSON lawyer announced that genetic fingerprints had been found on the judge ’s shorts and that they might belong to the murderers . On DATE the investigating judge in the case delivered CARDINAL arrest warrants against CARDINAL PERSON nationals suspected of being the perpetrators , in order to compare their DNA with the genetic fingerprints found on the judge ’s clothing .

On DATE the investigating judge summoned the President of GPE , PERSON , to appear as a witness , just before he was due to arrive in GPE for the LOC - GPE summit held in GPE on CARDINAL and CARDINAL DATE .

The relevant provisions of LAW of the Freedom of the Press Act of DATE ( as amended ) read as follows .

“ The making of any factual allegation or imputation that damages the honour or reputation of the person or body to whom the fact in question is attributed shall constitute defamation ( diffamation ) . The direct publication or reproduction of such an allegation or imputation shall be punishable , even where it is expressed in sceptical terms or made about a person or body that is not expressly named but is identifiable by the terms of the offending speeches , shouts , threats , written or printed matter , placards or posters .

The use of abusive or contemptuous language or invective not containing an allegation of any fact shall constitute an insult ( injure ) . ”

“ Anyone who , by CARDINAL of the means set out in section CARDINAL , makes a statement that is defamatory of a court , the army , navy or air force , a ORG institution or a public authority shall be liable on conviction to a fine of MONEY . ”

“ Where defamation is committed by the same means by reference to the functions or capacity of CARDINAL or more ministers or ministry officials , CARDINAL or more members of CARDINAL of the CARDINAL legislative chambers , a civil servant , a representative or officer of the law , a minister of religion in receipt of a ORG salary , a citizen temporarily or permanently responsible for a public service or holding public office , a juror or a witness on the basis of his witness statement , the offence shall be punishable by the same penalty .

“ The following persons shall be liable , as principals and in the following order , to penalties for serious crimes ( crimes ) or other major offences ( délits ) committed through the press :

( CARDINAL ) publication directors or publishers , whatever their profession or title and , in the circumstances defined in section CARDINAL ) , joint publication directors ;

( CARDINAL ) in the absence of any of the foregoing , the actual offenders ;

( CARDINAL ) in the absence of the authors , the printers ;

( CARDINAL ) in the absence of the printers , the vendors , distributors and billstickers .

In the cases provided for in the second paragraph of section CARDINAL , the joint and several liability of the persons referred to in DATE , DATE and DATE of the present section shall be engaged as if there were no publication director , when , contrary to the provisions of the present Act , a joint publication director has not been appointed . ”

The relevant provisions of LAW read as follows .

“ In matters within the jurisdiction of ORG , ORG or ORG , ORG may remove a case from any judicial authority responsible for pre - trial investigation or any trial court and transfer it to another judicial authority of the same order on grounds of a reasonable suspicion of bias .

An application for transfer may be made either by ORG attached to ORG or by the prosecutor of the court dealing with the case , or by the parties .

The application shall be served on all the parties concerned , who shall have DATE within which to file their observations in ORG .

The lodging of an application shall not have any suspensive effect unless ORG orders otherwise . ”

“ An application for a judge ’s withdrawal from a case may be based on any of the following grounds :

( CARDINAL ) where the judge or his / her spouse is a blood relative or relative by marriage of CARDINAL of the parties or of a party ’s spouse up to and including the degree of first cousin once removed ;

The judge ’s withdrawal may be sought even after divorce or the spouse ’s death where the judge had been a relative by marriage of CARDINAL of the parties , up to and including relatives of the [ civil - law ] second degree .

( CARDINAL ) where the judge or his / her spouse , or a person in respect of whom he / she acts as guardian ( tuteur ) , auxiliary guardian ( subrogé tuteur ) or court - appointed administrator , or a company or association in whose management or supervision he / she takes part , has an interest in the dispute ;

( CARDINAL ) where the judge or his / her spouse is a blood relative or relative by marriage , to the degree indicated above , of the guardian , supervisory guardian or court - appointed administrator of CARDINAL of the parties or of an executive or non - executive director or manager of a company that is a party to the proceedings ;

( CARDINAL ) where the judge or his / her spouse is in a situation of dependence vis - à - vis one of the parties ;

( CARDINAL ) where the judge has dealt with the case as a judge , prosecutor , arbitrator or legal adviser , or where he / she has given evidence as a witness relating to the facts of the case ;

( CARDINAL ) where there has been litigation between the judge , his / her spouse or their lineal blood relatives or relatives by marriage and CARDINAL of the parties , his / her spouse or lineal blood relatives or relatives by marriage ;

( CARDINAL ) where the judge or his / her spouse is litigating in a court of which one of the parties is a judge ;

( CARDINAL) where the judge or his / her spouse or their lineal blood relatives or relatives by marriage have a dispute over an issue similar to that existing between the parties ;

( CARDINAL ) where there has been , between the judge or his / her spouse and CARDINAL of the parties , any manifestation serious enough to cast doubt on his / her impartiality . ”

On DATE , at the NORP meeting of ORG , ORG Recommendation Rec(CARDINAL)CARDINAL to member GPE on the provision of information through the media in relation to criminal proceedings . The appendix to that Recommendation sets out DATE guiding principles , of which the first reads as follows :

“ The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal - justice system , subject only to the limitations provided for under the following principles . ”