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

The applicant , Mr PERSON , is a NORP national who was born in DATE and who lives in GPE , GPE .

On DATE the applicant was arrested on suspicion of being a member of an organised criminal gang , tax fraud , perjury and other related offences .

On DATE ORG ( Sąd Rejonowy ) remanded him in custody . That decision was justified by the strong evidence against the applicant , the gravity of the offences with which he had been charged and the severity of the penalty which could be imposed if convicted . In addition , the court relied on the risk that the applicant would induce witnesses to give false testimony and also go into hiding if released . The latter ground was justified in the light of the fact that the applicant did not have a fixed residence prior to his arrest .

It appears that the applicant ’s interlocutory appeal against the above detention order was dismissed on DATE .

Subsequently , the applicant ’s pre - trial detention was extended by the decisions of ORG issued on DATE , DATE and DATE , DATE , DATE and DATE and by the decisions of ORG ( PERSON ) issued on DATE and DATE and DATE .

The domestic courts relied on the original grounds for the applicant ’s detention . In addition it was noted that the proceedings were complex and involved a large number of witnesses and voluminous evidence . The investigating authorities had to obtain expert reports on accountancy , finance and forensics . Lastly , it was noted that new aspects of the alleged criminal activities of the applicant were being revealed in the course of the progressing investigation .

On DATE the prosecutor lodged a bill of indictment against the applicant and his CARDINAL alleged accomplices with ORG . The applicant was indicted of numerous counts of tax fraud , money laundering and perjury , allegedly committed within an organised criminal gang .

The first hearing took place on DATE . It appears that since then the trials have been taking place once a DATE or more frequently .

Pending trial , the applicant ’s detention was extended by ORG decisions of DATE and DATE .

The applicant or his lawyer challenged a number of decisions to extend his detention . It appears that an interlocutory appeal was not brought against CARDINAL of those decisions . The interlocutory appeals lodged by the applicant ’s lawyer against the decisions of DATE , CARDINAL May and CARDINAL DATE were rejected by ORG on DATE and CARDINAL unspecified dates respectively . Likewise , the applicant ’s request for release was rejected by ORG on DATE .

On DATE the ORG released the applicant from detention , placing him under police supervision ( dozór policyjny ) . The court considered that keeping the applicant in detention was no longer necessary since the majority of witnesses had already been examined by the trial court and in the light of the fact that the applicant had been recently registered at a fixed residence address .

It appears that the criminal proceedings against him are currently pending .

In parallel to his pre - trial detention subject of the instant application , the applicant served CARDINAL separate prison sentences imposed on him by a competent criminal court . The CARDINAL prison terms amounted to DATE , DATE and DATE . And thus from DATE until DATE the applicant was serving a sentence imposed on him by ORG in its judgment of CARDINAL DATE and from CARDINAL DATE until DATE the applicant was serving a sentence , which was imposed on him by the same court in its decision of DATE .

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


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE .

The applicant is a NORP priest belonging to the ecclesiastical jurisdiction of the ORG of PERSON . On DATE the bishop exempted the applicant from his duties as president of the ecclesiastical council of his parish .

Following this incident the applicant asked his bishop to allow him to transfer to ORG , the head of which was willing to have him . However , the Bishop of PERSON refused without giving any reasons . The Bishop of PERSON also instituted disciplinary proceedings against the applicant before the local ecclesiastical tribunal on the ground that he had stopped publishing a journal .

On DATE the Bishop of PERSON ordered the applicant not to celebrate mass pending the outcome of the disciplinary proceedings . On DATE the applicant challenged the bishop ’s decision before ORG .

On DATE the applicant retired by virtue of a decision of the competent ORG authorities . However , the ORG of PERSON continued refusing him permission to transfer to another bishopric in which he could continue to act as a priest on an unremunerated basis .

On DATE the ecclesiastical court of ORG ordered the applicant , by way of disciplinary penalty , to refrain from all activities as a priest during DATE .

On DATE the applicant challenged the refusal of the bishop to give him permission to transfer to GPE before the multi - member first instance civil court ( polimeles protodikio ) of GPE .

On DATE ORG quashed the decision of DATE of the Bishop of PERSON on the ground that it was issued without the applicant having been heard .

On DATE the public prosecutor of the first instance criminal court ( isangeleas plimmeliodikon ) of GPE refused to institute criminal proceedings against the ORG of PERSON , as the applicant had requested him to do , finding , inter alia , that the refusal of the bishop to grant the applicant permission to transfer was not subject to review .

On DATE the public prosecutor of ORG ( isangeleas efeton ) of GPE upheld the decision of DATE of the public prosecutor of the first instance criminal court .

On DATE the civil court of GPE decided that it could not review the refusal of the bishop to give the applicant permission to transfer because this was a “ spiritual ” matter .

On DATE the ecclesiastical court of ORG found , inter alia , that the applicant had defied its previous decision of DATE because he had celebrated mass with the permission of the local bishops in other bishoprics on specific occasions . It ordered the applicant , by way of disciplinary penalty , to refrain from all church activities during DATE . The applicant challenged this decision before ORG . The proceedings before ORG are still pending .

In the meantime the Bishop of PERSON instituted a fresh set of disciplinary proceedings against the applicant on the ground that he had given an interview to the press . On DATE the ecclesiastical court of ORG referred the case to ORG first instance court ( ORG ) .


CASE OF KAMBERI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE .

NORP In DATE the then ORG of the Municipality of Gostivar expropriated , inter alia , a plot of a construction land ( “ the property ” ) from the applicant 's late father with the stated aim of building a nursery school . Compensation was to be determined by a separate decision .

On DATE the applicant requested the then ORG , in non - contentious proceedings , to award him compensation according to the market value of the property . CARDINAL other persons joined these proceedings .

On DATE ORG ( “ the first - instance court ” ) upheld the applicant 's request and ordered GPE to compensate him for the expropriated property . It further dismissed his request against the State for lack of standing . On DATE ORG quashed that decision arguing , inter alia , that the lower court had incorrectly specified the award .

DATE and DATE ORG ordered retrial on CARDINAL occasions .

On DATE the first - instance court awarded the applicant compensation in the amount specified by an expert and ordered its joint payment by the ORG and the nursery school . It also ordered that the latter reimburse the applicant for his legal costs .

On DATE ORG upheld the lower court 's decision in respect of the awarded compensation and remitted the remainder for a fresh consideration .

On DATE the Solicitor General submitted an appeal on points of law before ORG . On DATE the applicant submitted his observations in reply .

On DATE the applicant sought enforcement of ORG decision of DATE . He proposed that the award be transferred to his bank account . On DATE the first - instance court requested the applicant to pay the court fees .

On DATE the public prosecutor lodged a request for protection of legality with ORG .

On DATE the applicant again requested enforcement of his claim established by the court decision of CARDINAL DATE . His request was granted on DATE .

On DATE the applicant and the ORG concluded an out - of - court settlement ( вонсудска спогодба ) ( “ the settlement ” ) under which the ORG undertook to recognise the applicant 's title to the property ( право на сопственост ) ; to register him as a co - owner in the land registry ; and to withdraw extraordinary remedies submitted on its part . The applicant agreed to withdraw his request for enforcement and to refrain from claiming any payment in respect of the above decisions .

The enforcement proceedings were terminated by a decision of ORG of DATE .

Notwithstanding the settlement , the request for the protection of legality was not withdrawn . On DATE ORG granted this request and quashed the lower courts ' judgments in respect of the awarded compensation . The court dismissed the applicant 's objection that the above request should be rejected as the parties have concluded the settlement . It held that the lower courts did not give sufficient reasons in their judgments and that it was not clear who was required to pay the compensation . The court , however , rejected the appeal on points of law lodged by the Deputy Solicitor General as it found that both parties withdrew their submissions stating that they have settled .

The proceedings resumed before the first - instance court . On a hearing held on DATE , the applicant confirmed that the property had been restored to him and withdrew his compensation claim . The first - instance court acknowledged the withdrawal .


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG Mr PERSON was born in DATE . He is an NORP citizen . He is now , and has been since DATE , a lecturer in LANGUAGE at ORG , GPE . At present he sits in the second chamber ( PERSON ) of ORG , being one of the CARDINAL Senators elected by the graduates of ORG .

ORG Mr PERSON is an active homosexual and has been a campaigner for homosexual rights in GPE since DATE ; in DATE he became a founder member and chairman of ORG . His complaints are directed against the existence in GPE of laws which make certain homosexual practices between consenting adult men criminal offences .

ORG In DATE the applicant instituted proceedings in ORG ( see paragraphs CARDINAL - CARDINAL below ) claiming that the impugned laws were no longer in force by reason of the effect of LAW , which declared that laws passed before LAW but which were inconsistent with it did not continue to be in force . Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life . Salient points in this evidence were summarised as follows :

( i ) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution .

( ii ) The applicant claimed that his health had been affected when in DATE he fainted at a GPE restaurant and was sent to ORG for tests which resulted in his being referred to a psychiatrist . He was under the psychiatric care of Dr. PERSON for a period in excess of DATE . Dr. PERSON ’s advice to the applicant was that , if he wished to avoid anxiety attacks of this kind , he should leave GPE and live in a country where the laws relating to homosexual behaviour had been reformed . Dr. PERSON stated in evidence that the applicant was in a normal condition at the time of the first consultation . He did not recall being made aware of a history of collapse .

( iii ) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman ( see paragraph CARDINAL above ) . The applicant informed the police authorities of his organisation ’s activities but met with a sympathetic response and was never subjected to police questioning .

( iv ) The applicant had participated in a television programme on ORG , the ORG broadcasting company , in or DATE . The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society . A complaint was lodged against that programme . ORG report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of ORG in that it could be interpreted as advocacy of homosexual practices .

( v ) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on ORG , which he attributed in some degree to the criminalising of homosexual activity . He also alleged in evidence that in the past his mail was opened by the postal authorities .

( vi ) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship , who normally lived outside GPE , could face prosecution .

( vii ) The applicant also claimed to have suffered what PERSON Justice PERSON in a dissenting judgment in ORG ( see paragraph CARDINAL below ) alluded to as follows :

" ... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends : and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship . "

ORG It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities . However , he remains legally at risk of being so prosecuted , either by ORG or by way of a private prosecution initiated by a common informer up to the stage of return for trial ( see paragraphs CARDINAL below ) .

ORG NORP law does not make homosexuality as such a crime . But certain statutory provisions in force in GPE penalise certain homosexual activities . Some of these are penalised by the Offences against LAW , DATE ( " LAW " ) and LAW , DATE ( " the DATE Act " ) .

The provisions relevant to the present case are sections CARDINAL and CARDINAL of LAW . LAW of LAW , as amended in DATE , provides that :

" Whosoever shall be convicted of the abominable crime of buggery , committed either with mankind or with any animal , shall be liable to be kept in penal servitude for life . "

Section CARDINAL of LAW , as similarly amended , provides that :

" Whosoever shall attempt to commit the said abominable crime , or shall be guilty of any assault with intent to commit the same , or of any indecent assault upon a male person , shall be guilty of a misdemeanour , and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding DATE . "

The offences of buggery or of an attempt to commit the same may be committed by male or female persons .

LAW of the DATE Act deals only with male persons . It provides that :

" Any male person who , in public or in private , commits , or is a party to the commission of , or procures or attempts to procure the commission by any male person of , any act of gross indecency with another male person , shall be guilty of a misdemeanour , and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding DATE , with or without hard labour . "

Sections DATE and CARDINAL of LAW should be read in conjunction with the provisions of LAW , section CARDINAL , by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in LAW or , in lieu thereof , a sentence of imprisonment for a term not exceeding DATE or a fine . The provisions of LAW and of LAW are also subject to the power given to the court by LAW , to apply , by way of substitution , certain more lenient measures .

The terms " hard labour " and " penal servitude " no longer have any practical significance , since anyone now sentenced to " hard labour " or " penal servitude " will , in practice , serve an ordinary prison sentence .

ORG LAW is the only CARDINAL of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities . What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case .

ORG The right to prosecute persons before a court other than a court of summary jurisdiction is governed by LAW , section CARDINAL of the LAW which is as follows :

" All crimes and offences prosecuted in any court constituted under LAW other than a court of summary jurisdiction shall be prosecuted in the name of ORG the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose . "

Section CARDINAL of ORG , DATE , as adapted by LAW , DATE , provides that :

" All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of GPE . "

ORG The provisions of LAW DATE extended to ORG most of the prosecuting functions exercised by the Attorney General . ORG ( an office created by that LAW ) is independent of the ORG and a permanent official in ORG of the ORG as distinct from ORG .

ORG Any member of the public , whether an NORP citizen or not , has the right as a " common informer " to bring a private prosecution . He need not have any direct interest in the alleged offence or be personally affected by it . A private prosecutor ’s rights are limited in respect of offences which are not triable summarily . In ORG ) v. PERSON [ DATE ] Irish Reports CARDINAL , it was held by ORG that the effect of section CARDINAL of ORG DATE was that a private prosecutor may conduct a prosecution up to the point where the judge of ORG decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences i.e. triable with a jury . Thereafter the Attorney General , or now also ORG , becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by ORG for trial with a jury .

ORG The offences which are at issue in the present case , namely those set out in sections CARDINAL and CARDINAL of LAW and in LAW of LAW , are indictable offences . Indictable offences are only triable summarily in ORG if the judge of ORG is of the opinion that the facts constitute a minor offence and the accused , on being informed of his right to trial by jury , expressly waives that right . This availability of summary trial is provided for by LAW DATE and is limited to those indictable offences set out in the Schedule to that Act . This does not include the offences under sections CARDINAL and CARDINAL of LAW . The summary trial procedure is available in respect of an offence under LAW of LAW where the accused is over DATE and the person with whom the act is alleged to have been committed is legally unable to consent for being under DATE or an idiot , an imbecile or a feeble - minded person . Thus a summary trial can never be had in cases involving consenting adults and , save where the accused pleads guilty , the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by ORG .

Moreover , LAW permits a person charged with any indictable offence ( save an offence under LAW DATE , murder , attempt to murder , conspiracy to murder , piracy or an offence under section CARDINAL ( CARDINAL ) ( i ) of LAW , DATE ) to plead guilty in ORG . If ORG , or the Attorney General , as the case may be , consents , the case may be disposed of summarily in that ORG . If sentence is imposed by ORG , it can not exceed CARDINAL months’ imprisonment . If the judge of ORG is of opinion that the offence warrants a greater penalty , he may send the accused forward to ORG for sentence . In such a case an accused may change his plea to CARDINAL of " not guilty " and the case will then be tried with a jury . ORG has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision .

ORG Therefore , while a private prosecution may be initiated by a common informer , a prosecution brought under one of the impugned provisions can not proceed to trial before a jury unless an indictment is laid by ORG . According to ORG there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the ORG in DATE .

ORG The following statement was made by ORG in DATE , in reply to a question asked by the Commission :

" The Director has no stated prosecution policy on any branch of the criminal law . He has no unstated policy not to enforce any offence . Each case is treated on its merits . "

The Government ’s statistics show that no public prosecutions , in respect of homosexual activities , were brought during the relevant period except where minors were involved or the acts were committed in public or without consent .

ORG In DATE the applicant brought proceedings in the ORG seeking a declaration that sections CARDINAL and CARDINAL of LAW and LAW of LAW were not continued in force since the enactment of LAW ( see paragraph CARDINAL above ) and therefore did not form part of NORP law . Mr Justice PERSON , in his judgment of DATE , found , among other facts , that " CARDINAL of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading , on occasions , to depression and the serious consequences which can follow from that unfortunate disease " . However , he dismissed Mr PERSON ’s action on legal grounds .

ORG On appeal , ORG , by a CARDINAL - to - CARDINAL majority decision of CARDINAL DATE , upheld the judgment of ORG . ORG was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question . The majority held that " as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in , such right , if it exists , is threatened , and the plaintiff has standing to seek the protection of the court " .

ORG In the course of these proceedings it was contended on behalf of the applicant that the judgment of CARDINAL DATE of ORG in the PERSON case ( Series A no . CARDINAL ) should be followed . In support of this plea , it was argued that , since GPE had ratified LAW , there arose a presumption that LAW was compatible with the LAW and that , in considering a question as to inconsistency under LAW , regard should be had to whether the laws being considered are consistent with the LAW itself .

In rejecting these submissions , Chief Justice O’Higgins , in the majority judgment , stated that " the ORG is an international agreement " which " does not and can not form part of [ GPE ’s ] domestic law nor affect in any way questions which arise thereunder " . The Chief Justice said : " This is made quite clear by LAW , section CARDINAL , of the LAW which declares : - ‘ No international agreement shall be part of the domestic law of the ORG save as may be determined by the ORG "

In fact , ORG already noted in its judgment of DATE in the PERSON case ( Series A no . CARDINAL , pp . CARDINAL , para . CARDINAL ) that the ORG had not introduced legislation to make ORG part of the municipal law of GPE .

ORG considered the laws making homosexual conduct criminal to be consistent with the LAW and that no right of privacy encompassing consensual homosexual activity could be derived from " the NORP and democratic nature of ORG " so as to prevail against the operation of such sanctions . In its majority decision , ORG based itself , inter alia , on the following considerations :

" ( CARDINAL ) Homosexuality has always been condemned in NORP teaching as being morally wrong . It has equally been regarded by society for DATE as an offence against nature and a very serious crime .

( CARDINAL ) Exclusive homosexuality , whether the condition be congenital or acquired , can result in great distress and unhappiness for the individual and can lead to depression , despair and suicide .

( CARDINAL ) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual .

( CARDINAL ) Male homosexual conduct has resulted , in other countries , in the spread of all forms of venereal disease and this has now become a significant public health problem in GPE .

( CARDINAL ) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution . "

ORG , however , awarded the applicant his costs , both of the proceedings before ORG and of the appeal to ORG .


Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case as submitted by the applicant are summarised below . The Government dispute the applicant ’s account .

The applicant was at the relevant time a research student in public law at ORG and married to a lawyer who had been the provincial president of ORG in DATE . According to the applicant she was constantly followed by the police on account of her husband ’s position .

On DATE , at TIME , the applicant was arrested by CARDINAL policemen at her home on suspicion of membership of ORG ( “ NORP ” ) , an illegal organisation .

The applicant was taken to the forensic doctor to be examined . Following the doctor ’s examination she was blindfolded and taken to an unknown destination where she was placed in a cell . After a certain period of time , she was again blindfolded and taken to another room to be interrogated .

NORP The applicant was interrogated by CARDINAL policemen and accused of forming links with and of working for the ORG abroad . She was then undressed and hung by her arms . She was given electric shocks to her mouth and sexual organs . After TIME she was taken down as she had fainted . The interrogators , while threatening her with death and rape , told her not to work on human rights matters . She was then taken to her cell . DATE she was again tortured and threatened with death and rape . The torture continued for DATE . During DATE of her custody the applicant was not given anything to eat . Thereafter she was only given a piece of bread and a few olives .

During her detention the applicant was requested to sign some documents . She was told that she would be tortured and raped if she did not agree to sign them . The applicant signed the documents . In the documents , by way of explanation for the marks of torture on her body , it was stated that the applicant had fallen while indicating a place used by the ORG . The policemen applied cream to the applicant ’s injuries .

On DATE the police officers brought her to the forensic doctor who drew up a report which stated : “ Upon the examination of PERSON GPE , violet - coloured bruises were identified on the left upper arm CARDINAL by QUANTITY and on the right tibia CARDINAL by QUANTITY ” .

On DATE the applicant , accompanied by police officers , was taken to ORG where she was examined by a forensic doctor . In his report dated DATE the doctor noted the presence of the same bruising on the applicant ’s arm and leg as indicated in the earlier report of CARDINAL DATE . The report concluded that the applicant ’s health was not at risk and that she was fit to work .

On DATE the applicant was brought before the public prosecutor at ORG . Her file contained the medical reports dated CARDINAL , CARDINAL and DATE . The applicant maintained before the public prosecutor that she had signed the confession statement under pressure and as a result of being tortured while in detention . The public prosecutor recorded in the file that the applicant did not acknowledge the statement which she gave to the police .

On DATE the applicant appeared before a substitute judge attached to ORG . The applicant repeated to the judge that she did not acknowledge the statement taken from her by the police “ since she had been tortured and held under duress for DATE ... and that the police had held her wrist and forced her to sign the police statement ” . The applicant ’s statement was recorded in the minutes of the hearing before the judge . The judge directed that the applicant be released from custody . The public prosecutor for his part ordered that the applicant stand trial before ORG on a charge of being a member of the ORG .

On DATE the applicant was given a certificate by ORG indicating that she was unable to work for DATE . According to the medical report the applicant was suffering from bronchopneumonia .

On DATE the applicant was acquitted by ORG on the ground of lack of evidence . The applicant was not in court on DATE . In its ruling the court noted as follows the declarations made by the applicant during a court hearing held on DATE and which was recorded in the minutes .

“ Although the accused admitted to the offence with which she was charged in her statements to the police , at a later stage during the proceedings before the judicial organs she claimed that she had made them under duress and even torture and had signed them without having read them . ”

LAW makes it a criminal offence to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL respectively , the latter provision applying to allegations made against civil servants ) .

Complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate criminal offences reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the alleged author of a criminal offence is a ORG official or civil servant , permission to prosecute must be obtained from the local administrative council ( ORG of ORG ) . The decision of a local council may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .


DOSOUDIL AND CHYTRACKOVA v. THE CZECH REPUBLIC

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

i. By a judgment of DATE , the GPE u ORG ( Okresní soud ) decided that a restitution agreement concluded between a state enterprise PERSON and the applicants on DATE was null and void . On DATE ORG ( PERSON ) upheld this judgment .

ii . On DATE the applicants brought restitution proceedings against that state enterprise .

By a judgment of DATE ORG ordered the state enterprise to conclude a restitution agreement with the first applicant . In respect of the second applicant the court found that she had introduced her restitution action outside the statutory time - limit ; her claims were therefore dismissed .

On DATE ORG upheld the first - instance court 's judgment .

On DATE the first applicant filed a constitutional appeal complaining about delays in the restitution proceedings . He further alleged a violation of his property rights .

On DATE ORG ( PERSON ) dismissed the first applicant 's constitutional appeal .

On DATE ORG ( PERSON ) rejected an appeal on points of law ( dovolání ) by the state enterprise ORG against ORG judgment of DATE .

iii . On DATE the first applicant brought an action for eviction of a private company ORG from the property he had recovered as a result of the restitution proceedings . According to the information in the case file , the eviction proceedings were terminated on DATE when the parties agreed to a friendly settlement .

iv . On DATE the first applicant brought an action in the NORP ORG against ORG seeking payment of rent arrears for the period during the eviction proceedings . This action seems to be still pending .

v. In a letter of DATE the applicants informed the ORG that they intended to seek non - pecuniary damages for the length of the restitution proceedings by means of an application to ORG . The outcome of the proceedings is unclear from the case file .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the ORG 's decision in the case of PERSON v. GPE ( ( dec . ) no . CARDINAL , § LAW , CARDINAL , DATE ) .


Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national who was born in GPE in DATE and lives at FAC .

The applicant ’s mother died on CARDINAL DATE of HIV ( human immunodeficiency virus ) encephalopathy , having been infected after a blood transfusion . She left CARDINAL children : a son , PERSON , born out of wedlock in DATE and legitimised by his mother ’s marriage in DATE , and the applicant , born in DATE , on whose birth certificate only his mother ’s name was entered as a parent , she being still married at the time of his birth , but living separately from her husband . They divorced in DATE .

On DATE PERSON brought an action against the applicant in the NORP tribunal de grande instance seeking an order that his mother ’s estate be divided by a notary , that the applicant , as an adulterine child , could not lay claim to CARDINAL of it and that there be deposited with the notary a sum of money unlawfully withdrawn by the applicant from his mother ’s account and transferred to a personal account while their mother was in a coma .

In his pleadings , the applicant agreed to the appointment of a notary to divide the estate , but submitted that LAW , which restricts the inheritance rights of adulterine children , was discriminatory and incompatible with Articles CARDINAL and CARDINAL of the LAW , the provisions of LAW on the Rights of the Child and Article CARDINAL of LAW , which enshrines the principle that children born in wedlock and children born out of wedlock have equal rights . He requested the court to hold that he had the same inheritance rights as a legitimate child . He also submitted that the amount which he had been requested to deposit with a notary had been transferred as a gift which he was not required to bring into account , as evidenced by a letter from the deceased of DATE , a general power of attorney for bank transactions , dated DATE , and witness statements .

In a judgment of DATE the court ordered the estate to be divided . With regard to the applicant ’s rights , it referred to LAW ( see paragraph CARDINAL below ) .

The court conceded that LAW represented a derogation from the principle , enshrined in the first paragraph of LAW , that children should be treated equally regardless of descent , but held that its purpose was not to discriminate between children on the grounds of their birth but to ensure minimum compliance with marital commitments on the part of the married parent who engenders an illegitimate child . It accordingly concluded that LAW was necessary in order to protect the rights of others and that it was a principle of public policy which was not contrary to the Convention .

In respect of the sum which had been withdrawn by the applicant and transferred to his own account , the court held that the applicant had merely executed his mother ’s intention to gift him a sum of money in addition to his share in the estate and that although that gift should notionally be brought into account in calculating the disposable portion of the estate , it was inappropriate as matters stood to order that the amount in question be deposited with the notary dividing the estate .

NORP The applicant appealed , arguing , among other things , that LAW was incompatible with Articles CARDINAL and CARDINAL of LAW No . CARDINAL .

In a judgment of DATE , ORG upheld the provisions of the lower court ’s judgment ordering the estate to be divided and determining the applicant ’s inheritance rights . It considered , however , that the amount transferred to the applicant ’s account should be returned to the estate to be divided because he had not proved that his mother had intended it as a gift .

With regard to the complaint that the discrimination between legitimate children and adulterine children was incompatible with the provisions of the Convention , ORG held :

“ In the instant case the provisions of LAW , which limit the inheritance rights of adulterine children , are directly linked to the NORP legal principle of public policy according to which marriage should be monogamous and the interests of the spouse and legitimate children of an adulterer protected .

Article CARDINAL was not enacted in order to disadvantage adulterine children , but to protect the interests of the spouse and legitimate children of an adulterer ; the provision does not therefore intentionally discriminate against adulterine children , but ensures the protection of children born of the marriage who might be disadvantaged on the division of their GPE estate by the presence of an adulterine child who , on account of the predecease of the non - adulterous spouse and the system of matrimonial property elected by the spouses , might otherwise inherit from his or her parent both the assets from that parent ’s estate and the assets from the estate of the spouse who is not his or her parent .

The court was thus properly entitled to hold that it was not the intention of the legislature to discriminate between children on the grounds of their birth , but to ensure minimum compliance with the marital obligations of a married parent with regard to his or her legitimate children ; the court was also properly entitled to hold that LAW was a provision necessary for the protection of the rights of others , that it was a NORP legal principle of public policy and that it was not contrary to LAW . ”

The applicant appealed on points of law to ORG , which delivered its judgment on DATE .

With regard to the applicant ’s complaint of unjustified discrimination on grounds of birth between children born in wedlock and children born out of wedlock , contrary to Articles CARDINAL and CARDINAL of the Convention , ORG held that inheritance rights had nothing to do with respect for private and family life guaranteed by LAW .

In respect of the complaint that ORG had ordered the sum transferred to the applicant ’s account to be returned to the estate to be divided , ORG held that in deciding that the facts of the case had not shown any intention on the part of the deceased to bestow a gift on her son in advance of the division of her estate ORG had determined an issue which it alone had jurisdiction to determine .

On DATE ORG and Haemophiliacs awarded the applicant , in his personal capacity , compensation of MONEY ( ORG ) and assessed the deceased ’s loss at ORG CARDINAL,CARDINAL , to be paid to her heirs . That amount was thus paid to the notary dealing with the estate and the applicant subsequently received CARDINAL of it .

The relevant provisions of LAW , introduced by LAW no . CARDINAL of DATE , provide :

“ Children or their issue shall inherit from their father and mother , grandfathers , grandmothers or other ancestors , irrespective of sex or primogeniture , and even if they are born of different marriages .

The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right ; they shall inherit per stirpes if all or some of them inherit through their ascendants . ”

“ Children born out of wedlock shall , in general , inherit from their father and mother or other ancestors , as well as from their brothers and sisters or other collateral relatives , on the same terms as legitimate children . ”

“ Children born out of wedlock whose father or mother was , at the time of their conception , bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children ; however , they shall each receive CARDINAL of the share to which they would have been entitled if all the children of the deceased , including themselves , had been legitimate .

The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child ’s share of the estate is thus reduced ; it shall be divided between them in proportion to their share in the estate . ”

The relevant provisions of LAW on the Rights of the Child , which came into force on DATE , read as follows :

“ CARDINAL . DATE States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind , irrespective of the child ’s or his or her parent ’s or legal guardian ’s race , colour , sex , language , religion , political or other opinion , national , ethnic or social origin , property , disability , birth or other status .

DATE States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status , activities , expressed opinions , or beliefs of the child ’s parents , legal guardians , or family members . ”

In a report entitled “ Status and Protection of Children ” , adopted in DATE , the ORG d’Etat referred to the issue of equal treatment of children regardless of descent in the following terms :

“ The restriction of adulterine children ’s inheritance rights is the subject of much criticism . It appears to be in direct conflict with the principle that children should be treated equally regardless of descent and constitutes an infringement of the principles enshrined in the Civil Code according to which children born out of wedlock have , in general , the same rights as children born in wedlock . Such discrimination , based on descent , also appears to be contrary to LAW and to FAC . It should therefore be abolished . ”

The PERSON d’Etat ’s report also sets out socio - demographic data . It emerges from the report that as at DATE CARDINAL in CARDINAL children had been born out of wedlock , this being true of CARDINAL in CARDINAL births in DATE . In addition to that , major shifts in family models appeared during DATE , “ with a PERCENT decrease in the annual number of marriages DATE , CARDINAL times more births out of wedlock over DATE , and a rise in the number of cohabiting unmarried couples so sharp that it is now the typical first union for CARDINAL in CARDINAL NORP citizens ... as for divorces , the annual figure had already almost doubled DATE , and it doubled again during DATE ” .

A government bill , registered on DATE ( no . CARDINAL ) , proposed bringing the inheritance rights of adulterine children into line with that of other children . It was subsequently abandoned .

On DATE the Minister of ORG instructed PERSON , a sociologist , to study shifts in family models . The report , entitled “ Couples , Descent and Kinship DATE ” was submitted on DATE . It found that there was no sociological fracture according to whether couples were married or not , and criticised the inegalitarian status of adulterine children .

In DATE a working group on family law was set up by the Minister of ORG to consider , among other things , “ possible changes to the law in the light of factual developments ” in order to avoid “ a gulf developing between [ ORG ] aspirations and the law ” . Chaired by Professor PERSON , the commission submitted its report on DATE . It contained a set of proposals for “ renovating family law ” . In particular , the commission recommended “ giving full effect to the principle that children should be treated equally regardless of descent ” as follows :

“ The principle that children should be treated equally regardless of descent was CARDINAL of the CARDINAL guiding principles underlying the CARDINAL January CARDINAL Act . At the time , a compromise had to be made , however , and full equality was not achieved . DATE , it appears essential to complete the exercise and achieve full equal treatment of children regardless of descent . In order to attain that objective , full equality of status needs to be achieved and the right to affiliation made equal so that the possibility of establishing or contesting descent will no longer depend on the GPE legal status .

SSCARDINAL . Achieving equality of status

The working group considers , unanimously and unhesitatingly , that the time has come to abolish the legal restrictions on adulterine children ’s inheritance rights . The current position is that their rights are halved where they are competing with half- brothers and sisters or with the adulterer ’s spouse .

A number of arguments militate strongly in favour of abolition . The first is quite simply chronological . The solutions adopted by the CARDINAL January CARDINAL Act constituted , according to the most eminent commentators , ‘ an inglorious trade - off’ , the fruit of a ‘ PERSON of ORG . That compromise was necessary as a transitional phase during which the principle of equality which the LAW had intended to promote could be progressively inserted into our law . DATE , the transitional phase has come to an end . The second argument stems from the case - law of ORG . It is likely that the ORG will soon find that the NORP rule violates the LAW , and it would be preferable for an amendment of our law not to appear to be imposed from outside . Lastly , and above all , the solution favoured by the group of making the law of descent equal by abolishing divisive classifications makes it more and more difficult to maintain inequalities based on conditions of birth , without inevitably incurring the CARDINAL - fold complaint of injustice and contradiction .

Is there a danger that the importance of marriage will be lessened by undermining the trust which husbands and wives have placed in each other ? The group does not think so . Adultery is clearly a serious injury inflicted on the spouse who is the victim of it and , over and above the spouses , on the children born of their marriage . In more legal terms , adultery is always an instance of misconduct and can be serious misconduct , for the duty of fidelity is inherent in the marital commitment . If such misconduct must be punished , however , it is only those who have committed it who should be punished and certainly not , we feel , the child born as a result . It is contradictory to declare on the one hand that parents have equal responsibility for their children irrespective of how they choose to lead their life as a couple and , on the other hand , to impose on a child , on the grounds that he or she is adulterine , the consequences of the parent ’s infidelity .

More specifically , to enforce marital duties through inheritance rights appears to be neither fair nor appropriate . For CARDINAL thing , relations between husband and wife will often have been broken off well before the birth of the child , and there is therefore something hypocritical about imposing on that child the ties of a commitment from which those who entered into it have long since freed themselves . For another thing , even if the marital ties have remained intact until the end , is it not vain to hope that a hereditary advantage will succeed in healing a split which by its very nature belongs to a completely different realm ? Moreover , as the law currently stands , it is almost always possible for the child ’s parent to ‘ ORG this reduction in rights by legitimising DATE after divorcing and re - marrying , or , without divorcing , by seeking a court order DATE or even adopting the child . Far from making the rule more easily bearable , that option has the effect of leaving the child ’s ultimate destiny to the discretion of the adulterous parent . Thus the current provisions have the effect of multiplying inequalities , without succeeding in strongly affirming the importance of the marital commitment .

We add that we are not in favour of an intermediate solution whereby the current protection afforded by law to children born in wedlock ( particularly Articles CARDINAL and CARDINAL ) would be abolished , while the protection afforded to the wronged spouse , the direct victim of the adultery , under ORG and CARDINAL , second paragraph , would be maintained . The effect of that solution would be minimum compliance with the international conventions , whose sole concern is to secure equality between children , whereas the protective provisions specific to the spouse apply , by definition , only where the deceased leaves no other issue . Such a hybrid solution would merely be a means of failing to resolve the debate . What is actually at issue is not only material equality between children born of different partnerships in the division of their common parent ’s estate , but , in both more abstract and stronger terms , equality of the rights conferred by descent .

Proposal :

– Abolish the restrictions on adulterine children ’s inheritance rights . ”


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr. PERSON , an NORP journalist born in DATE , resides in GPE and is editor of the magazine ORG .

On DATE , DATE after the NORP general elections , in the course of a television interview , Mr. PERSON , President of the NORP ORG , accused Mr. PERSON , the President of ORG ( ORG ) of having served in the first ORG infantry brigade during the Second World War . This unit had on several occasions massacred civilians behind the NORP lines in GPE . Mr. PERSON did not deny that he was a member of the unit , but stated that he was never involved in the atrocities it committed . Mr. PERSON then said that he had not alleged anything of the sort .

The following day , Mr. PERSON , the retiring Chancellor and President of ORG ( ORG ) , was questioned on television about these accusations .

Immediately before the television interview , he had met Mr. PERSON at ORG . Their meeting was one of the normal consultations between heads of parties with a view to forming a new government ; it had aroused great public interest because before the elections on DATE the possibility of a FAC - Peter coalition government had been canvassed .

At the interview , Mr. PERSON excluded the possibility of such a coalition because his party had won an absolute majority . However , he vigorously supported Mr. PERSON and referred to Mr. PERSON ’s organisation and activities as a " political mafia " and " mafia methods " . Similar remarks were reported DATE in a GPE DATE newspaper to which he had given an interview .

At this juncture , the applicant published CARDINAL articles in the GPE magazine ORG .

The first was published on DATE under the heading " The Peter Case " ( " Der Fall Peter " ) . It related the above events and in particular the activities of the first ORG infantry brigade ; it also drew attention to Mr. PERSON ’s role in criminal proceedings instituted in GPE ( and later abandoned ) against persons who had fought in that brigade . It drew the conclusion that although Mr. PERSON was admittedly entitled to the benefit of the presumption of innocence , his past nevertheless rendered him unacceptable as a politician in GPE . The applicant went on to criticise the attitude of Mr. PERSON whom he accused of protecting Mr. PERSON and other former members of the ORG for political reasons . With regard to Mr. PERSON ’s criticisms of Mr. PERSON , he wrote " had they been made by someone else this would probably have been described as the basest opportunism " ( " GPE anderen würde man es wahrscheinlich übelsten ORG nennen " ) , but added that in the circumstances the position was more complex because Mr. PERSON believed what he was saying .

The second article , published on DATE , was entitled " Reconciliation with the NORP , but how ? " ( " FAC den NORP - aber wie ? " ) . It covered several pages and was divided into an introduction and CARDINAL sections : " ‘ Still’ or ‘ Already’ " , " We are all innocent " , " Was it necessary to shoot defenceless people ? " , " Why is it still a question for discussion ? " , " PERSON and PERSON " and " Politically ignorant " .

In the introduction Mr. PERSON recalled the facts and stressed the influence of Mr. PERSON ’s remarks on public opinion . He criticised him not only for supporting Mr. PERSON , but also for his accommodating attitude towards former NORP who had recently taken part in NORP politics .

Under the heading " ‘ Still’ or ‘ Already’ " the applicant conceded that one could not object to such attitudes on grounds of " Realpolitik " . According to him " the time has passed when for electoral reasons one had to take account not only of NORP but also of their victims ... the former have outlived the latter ... " . Nevertheless GPE , which had produced PERSON and PERSON and so many other war criminals , had not succeeded in coming to terms with its past ; it had simply ignored it . This policy risked delivering the country into the hands of a future fascist movement .

With regard to the then Chancellor , he added : " In truth Mr. PERSON ’s behaviour can not be criticised on rational grounds but only on irrational grounds : it is immoral , undignified " ( " In Wahrheit kann man das , was FAC tut , auf rationale PERSON nicht widerlegen . Nur irrational : es ist unmoralisch . PERSON " ) . It was , moreover , unnecessary because NORP could reconcile themselves with the past without seeking the favours of the former NORP , minimising the problem of concentration camps or maligning Mr. PERSON by exploiting anti - Semitism .

What was surprising was not that one " still " spoke about these things DATE but , on the contrary , that so many people were " already " able to close their eyes to the existence of this mountain of corpses .

Finally , Mr. PERSON criticised the lack of tact with which Mr. PERSON treated the victims of the NORP .

The second section commented on the attitude of NORP society in general with regard to NORP crimes and former NORP . In the author ’s opinion , by sheltering behind the philosophic alternative between collective guilt and collective innocence the NORP had avoided facing up to a real , discernible and assessable guilt .

After a long disquisition on various types of responsibility , he stressed that at the time it had in fact been possible to choose between good and evil and gave examples of persons who had refused to collaborate . He concluded that " if PERSON had used his personal reputation , in the way he used it to protect Mr. PERSON , to reveal this other and better GPE , he would have given this country - DATE afterwards - what it most needed to come to terms with its past : a greater confidence in itself " .

The third and fourth sections ( which together amounted to CARDINAL of the article ) also dealt with the need to overcome the consciousness of collective guilt and envisage the determination of real guilt .

Under the title " Was it necessary to shoot defenceless people ? " , Mr. PERSON drew a distinction between the special units and the regular forces in the armies of ORG ; he pointed out that no one was forcibly enlisted in the former : CARDINAL had to volunteer .

In the following section he stressed the difference between individuals guilty of criminal offences and persons who , morally speaking , had to be regarded as accomplices ; he maintained that if GPE had tried its NORP earlier , more quickly and more thoroughly , it would have been able to view its past more calmly without complexes and with more confidence . He then set out the reasons why that had not been possible and defended Mr. PERSON from the charge of belonging to a " mafia " . Finally , he considered the possibility of showing clemency after so DATE and concluded : " It belongs to every society to show mercy but not to maintain an unhealthy relationship with the law by acquitting obvious murderers and concealing , dissembling or denying manifest guilt . "

The fifth section of Mr. PERSON article compared the PERSON case with another affair of a more economic nature relating to Mr. PERSON , CARDINAL of the leaders of ORG ( Österreichische Volkspartei ) , and compared Mr. PERSON ’s different reaction in each case . The author argued that the circumstances of the first case made Mr. PERSON unfit to be a member of parliament , a politician and a member of the government , and added : " This is a minimum requirement of political ethics " ( " ein Mindesterfordernis des politischen Anstandes " ) . The " monstrosity " ( " GPE " ) was not , in his opinion , the fact that Mr. PERSON had raised the matter , but that Mr. PERSON wished to hush it up .

The article ended with a section criticising the political parties in general owing to the presence of former NORP among their leaders . The applicant considered that Mr. PERSON ought to resign , not to admit his guilt but to prove that he possessed a quality unknown to Mr. PERSON , namely tact .

On DATE and CARDINAL DATE , the then Chancellor brought CARDINAL private prosecutions against Mr. PERSON . He considered that certain passages in the articles summarised above were defamatory and relied on LAW , which reads :

" CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine .

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine .

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . "

Under LAW , " evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... " .

On DATE , ORG found Mr. PERSON guilty of defamation ( üble Nachrede - Article CARDINAL para . CARDINAL ) for having used the expressions " the basest opportunism " , " immoral " and " undignified " . However , it held that certain other expressions were not defamatory in their context ( " minimum requirement of political ethics " , " monstrosity " ) . It fined him MONEY , considering as mitigating circumstances the fact that the accused intended to voice political criticism of politicians on political questions and that the latter were expected to show greater tolerance of defamation than other individuals . In view of the defendant ’s good faith it awarded Mr. PERSON no damages but , on his application , ordered the confiscation of the articles complained of and the publication of the judgment .

In its decision , which contained a lengthy statement of reasons , ORG first examined the objectively defamatory character of each of the passages complained of . It held that the expressions " basest opportunism " , " immoral " and " undignified " were defamatory and were directly or indirectly aimed at Mr. PERSON personally , whereas the words " minimum requirement of political ethics " and " monstrosity " did not go beyond the accepted limits of political criticism .

According to Mr. PERSON , the first CARDINAL expressions were value - judgments and therefore as such not contrary to LAW . However , ORG considered that the unfavourable conclusions drawn with regard to the then Chancellor ’s behaviour fell within the scope of that provision . Nor could the defendant rely on his right to freedom of expression , since the relevant provisions of LAW and LAW ) of the ORG authorised limitations of this right : a balance had to be struck between this right and the right to respect for private life and reputation . In the instant case the applicant had gone beyond the permissible limits .

As regards Mr. PERSON ’s use of a private prosecution , ORG pointed out that he had been criticised not in his capacity as Federal Chancellor but as a leading member of his party and a politician . Article CARDINAL para . CARDINAL of the Criminal Code therefore did not apply in the instant case : it made defamation of an office - holder punishable , but solely by means of a public prosecution commenced with the consent of the person concerned , who could not bring a private prosecution unless the prosecuting authorities refused to act .

ORG then considered the question of proving truth ( preuve de la vérité ) ( see paragraph CARDINAL above ) . It held that as the applicant had not provided evidence to justify the expression " basest opportunism " , that was sufficient to lead to his conviction .

With regard to the words " immoral " and " undignified " , the accused had used them in relation to Mr. PERSON ’s attitude consisting in minimising NORP atrocities , referring to Mr. PERSON ’s activities as being of a mafia - type and insinuating that the latter had collaborated with the Gestapo . On this last point ORG admitted evidence produced by Mr. PERSON in the form of a court decision finding a journalist guilty of defamation for having made a similar allegation .

In so far as Mr. PERSON had spoken of " mafia methods " and " mafia " , ORG pointed out that these expressions normally referred to an organised form of criminal behaviour but were sometimes used in a different sense . Even if one did not accept the argument put forward by the private prosecutor , his conception of the " mafia " was a possible one and deserved to be examined . It was not for the prosecutor to prove the truth of his allegations but for Mr. PERSON to prove the truth of his . Mr. PERSON himself had conceded that in order to attain his various aims he relied on an organisation with numerous ramifications . Moreover , the then Chancellor ’s statements ( see paragraph CARDINAL above ) must be seen in the context of a political struggle between political opponents , each of them using such weapons as were at his disposal . Seen from this angle they did not reflect an absence of morality or dignity but constituted a possible defence and were in no way unusual in the bitter tussles of politics .

In truth , Mr. PERSON ’s attitude towards NORP victims and NORP collaborators was far from clear and unambiguous ; it appeared in a form which allowed different conclusions . It was therefore logically impossible for the defendant to establish that the only possible interpretation of this attitude was the one he put on it .

Mr. PERSON and Mr. PERSON both appealed against the judgment to ORG . On DATE , ORG set the judgment aside without examining the merits , on the ground that ORG had failed to go sufficiently into the question whether the then Chancellor was entitled to bring a private prosecution in spite of the provisions of LAW ( see paragraph CARDINAL above ) .

ORG , to which ORG had returned the case , gave judgment on DATE .

After examining the circumstances surrounding the statements by the then Chancellor , it came to the conclusion that he had been criticised not in his official capacity but as head of a party and as a private individual who felt himself under an obligation to protect a third person . It followed therefore that he was entitled to bring a private prosecution .

As regards the legal definition of the acts imputed to Mr. PERSON , ORG confirmed its judgment of DATE .

With regard to the defence of justification , it again noted that the accused had not produced any evidence to prove the truth of the expression " the basest opportunism " . As regards the expressions " immoral " and " undignified " , the evidence he had produced related solely to the allegations of collaboration with the NORP made against Mr. PERSON . These , however , were not relevant because Mr. PERSON had made them after the publication of the articles in question .

In so far as these expressions were directed at other behaviour and attitudes of the Chancellor , ORG maintained its previous findings unchanged . It considered that Mr. PERSON criticisms went far beyond the question of Mr. PERSON ’s attacks on Mr. PERSON . The fact that the former had been able to prosecute the applicant but could not himself be prosecuted for defamation by Mr. PERSON was due to the existing legislation on parliamentary immunity . The obligation to prove the truth of his statements was also based on the law and it was not for the courts but for the legislature to make this proof less difficult . Nor was ORG responsible for the lack of tolerance and the litigious tendencies of certain politicians .

It therefore passed the same sentence as in the original judgment ( see paragraph CARDINAL above ) .

Both sides again appealed to ORG , which gave judgment on DATE ; it reduced the fine imposed on the applicant to QUANTITY but confirmed ORG judgment in all other respects .

Mr. PERSON disputed the statement that different criteria applied to private life and to political life . He argued that politicians and private individuals should receive the same treatment as regards the protection of their reputation .

ORG , however , pointed out that LAW applied solely to the esteem enjoyed by a person in his social setting . In the case of politicians , this was public opinion . Yet experience showed that frequent use of insults in political discussion ( often under cover of parliamentary immunity ) had given the impression that statements in this field could not be judged by the same criteria as those relating to private life . Politicians should therefore show greater tolerance . As a general rule , criticisms uttered in political controversy did not affect a person ’s reputation unless they touched on his private life . That did not apply in the instant case to the expressions " minimum requirement of political ethics " and " monstrosity " . Mr. PERSON ’s appeal was therefore dismissed .

ORG then turned to Mr. PERSON grounds of appeal and first of all examined the evidence taken at first instance , in order to decide in what capacity Mr. PERSON had been subjected to his criticism . It too found that he was criticised in his capacity both as a party leader and as a private individual .

The expression " the basest opportunism " meant that the person referred to was acting for a specific purpose with complete disregard of moral considerations and this in itself constituted an attack on Mr. PERSON ’s reputation . The use of the words " had they been made by someone else " ( see paragraph CARDINAL above ) could not be understood as a withdrawal of the criticism . As the defendant had not succeeded in proving the truth of it , the court of first instance had been right to find him guilty of an offence .

According to the applicant , the expressions " immoral " and " undignified " were his personal judgment of conduct which was not disputed , a judgment made in exercise of his freedom of expression , guaranteed by LAW . ORG did not accept this argument ; it pointed out that NORP law did not confer upon the individual an unlimited right to formulate value - judgments and that LAW ) authorised limitations laid down by law for the protection , inter alia , of the reputation of others . Furthermore , the task of the press was to impart information , the interpretation of which had to be left primarily to the reader . If a journalist himself expressed an opinion , it should remain within the limits set by the criminal law to ensure the protection of reputations . This , however , was not the position in the instant case . The burden was on Mr. PERSON to establish the truth of his statements ; he could not separate his unfavourable value - judgment from the facts on which it was based . Since Mr. PERSON was personally convinced that Mr. PERSON used " mafia methods " , he could not be accused of having acted immorally or in an undignified manner .

The appeal judgment was published in ORG on CARDINAL DATE , as required by the accessory penalty imposed on Mr. PERSON and his publisher .


Violation of Art. 8;Non-pecuniary damage - financial award

Since DATE the applicant has been serving in the Sniego Prison in GPE a sentence of CARDINAL years’ imprisonment for aggravated murder . By a Presidential decree of pardon of CARDINAL DATE the applicant ’s sentence was reduced by DATE .

On DATE the applicant applied to the prison administration , requesting his transfer to another prison . The prison administration refused his request . The applicant unsuccessfully complained that he was unable to change prisons to various NORP and international authorities and NGOs , including ORG , ORG ( “ the ORG ” ) and ORG .

On DATE he received a letter dated DATE from the ORG Commissioner on ORG based in GPE . The letter had been opened when he received it .

On DATE he received a letter dated DATE from the Secretariat of ORG . The letter had also been subjected to initial screening by the prison administration before the applicant had access to it .

On DATE the applicant was reprimanded in disciplinary proceedings . He lodged with the ORG a complaint concerning the reprimand and alleged breaches of the freedom of his correspondence .

On DATE the ORG found that the prison administration had censored a letter from the applicant to his wife in which he had accused the prison staff of theft . The ORG found that , as a consequence , on DATE the prison administration had disciplined the applicant for slander . The ORG held that the applicant ’s letters to his wife pertained to the field of his private life , and that his allegations of theft did not constitute any formal suggestions , applications or complaints for the purpose of Rule CARDINAL § CARDINAL ( CARDINAL ) of ORG ( see the ‘ Relevant domestic law’ part below ) . The ORG concluded that the disciplinary penalty was unlawful , and suggested that it should be lifted . The ORG also found that the letter from the ORG of DATE had been opened . He held that the applicant ’s right to respect for correspondence under LAW was “ almost inviolable ” , but that the ORG was allowed to censor ORG letters in certain cases . The ORG found no violation of the applicant ’s right to respect for his correspondence .

On the basis of the ORG ’s conclusions , on CARDINAL DATE the Director of ORG lifted the disciplinary penalty .

DATE LAW provides that correspondence of a person is inviolable . Persons shall be protected by courts from arbitrary or unlawful interference with that right .

Article CARDINAL of the Prison Code ( Pataisos darbų kodeksas ) provides that “ convicted ORG correspondence shall be censored ” .

Rule CARDINAL § CARDINAL ( CARDINAL ) of ORG ( NORP darbų įstaigų vidaus tvarkos laikinosios taisyklės ) states that “ convicted ORG letters ( except those to a prosecutor ) sent from or received in a prison are subject to censorship ” . Rule CARDINAL § CARDINAL ( CARDINAL) states that any letters containing “ cryptography [ and ] cynical or threatening statements shall not be sent to the addressee ” . Rule CARDINAL § CARDINAL ( CARDINAL ) provides that written “ suggestions , applications or complaints containing insults , jargon or obscenities shall not be sent , [ and that ] disciplinary penalties may be imposed on the persons who have signed ” such papers .


CASE OF LEVAGES PRESTATIONS SERVICES v. FRANCE

ORG company carries on the business of leasing lifting gear and providing related services . In DATE it had recourse to an employment agency for temporary staff , with which it signed CARDINAL contracts for the provision of manual labour . Subsequently , it refused to pay CARDINAL of CARDINAL invoices , initially because it disagreed with the number of hours charged and then on the ground that they were unsigned and did not bear the company stamp .

On DATE ORG ordered it to pay the agency the sum of MONEY ( ORG ) under the contracts .

ORG The applicant company lodged a criminal complaint against a person or persons unknown for forgery of commercial instruments , and against the employment agency for aiding and abetting and for making use of forged instruments .

ORG It appealed to ORG against ORG judgment and made an application for the appeal to be stayed pending the outcome of the criminal proceedings instituted after it had lodged its complaint .

ORG On DATE ORG made an interlocutory order staying the appeal . The relevant part of the judgment read as follows :

" ... the [ ORG ] company produced the text of the complaint it had lodged with the senior investigating judge in GPE and evidence of payment on CARDINAL DATE of the sum of MONEY , being the amount of the deposit requested on DATE ;

That complaint concerns not only the identity of the person who signed some of the time sheets but also the number of TIME invoiced ;

Thus it is the actual documents on which [ the employment agency ] bases its claim that are alleged to be forgeries ;

Pursuant to the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court , the present proceedings must be stayed . "

ORG On DATE the investigating judge ruled that there was no case to answer in respect of the CARDINAL criminal complaints .

ORG The appeal proceedings resumed in ORG , which upheld ORG judgment on DATE .

In its judgment on the merits , following its interlocutory judgment of DATE , ORG referred " for an account of the facts of the case and the claims of the parties to that judgment [ of DATE ] and the judgment of the court below ... " . It ordered the applicant company , which had continued to argue that the documents were forgeries , to pay ORG CARDINAL in damages for having entered an appeal that was designed to gain time and was vexatious to the agency .

ORG On DATE ORG appealed on points of law to ORG against the judgment of CARDINAL DATE . On DATE it filed its pleadings , in which it made no mention of either the criminal proceedings or ORG interlocutory judgment . It annexed a copy of ORG judgment of DATE , of its pleadings of CARDINAL DATE on appeal and of ORG judgment of CARDINAL DATE , against which it was appealing .

In the proceedings in ORG the applicant company was represented by a member of the ORG d’Etat and ORG , as required by law .

ORG On DATE ORG ) held that the appeal was inadmissible in a judgment which read as follows :

" Having regard to the first paragraph of Article CARDINAL of LAW ;

On DATE the ORG company appealed on points of law against a judgment delivered on DATE by ORG which expressly refers to a previous judgment of DATE for an account of the facts of the case and the claims of the parties . That judgment of CARDINAL DATE thus forms an integral part of the judgment under appeal , but no copy or execution copy of it has been produced . It follows that the appeal on points of law is inadmissible . "

ORG LAW ( " NORP " ) contains the following provisions of a general nature :

" The parties shall conduct the proceedings in accordance with the responsibilities incumbent on them . They shall carry out the steps in the proceedings in accordance with the prescribed formal requirements and the time - limits . "

" The court shall ensure the proper conduct of the proceedings ; it shall be empowered to lay down time - limits and order necessary measures . "

" The claims of the parties and the grounds on which they rely shall be set out succinctly in the judgment , which shall be reasoned . "

The judgment shall set out the decision in the form of operative provisions .

" On appeal or if a case is remitted by ORG , the registrar shall forward the case file to the relevant court either within DATE of being requested so to do or within such other time as may be laid down in special provisions .

The registrar shall , if appropriate , make copies of the documents necessary for the proceedings to continue . "

" The case file of the court of first instance , which the registrar shall request as soon as an appeal to ORG is entered , shall be added to ORG case file . "

ORG The procedure for appeals to ORG , a special form of appeal , is written and relatively straightforward . However , strict time - limits apply . Appeals on points of law , which are brought against a decision and not against a party , are in principle presented by members of the ORG d’Etat and ORG . Members of the ORG d’Etat and ORG enjoy a monopoly in representing parties in those courts and have a dual role as their representatives and as officers of the court . Thus , for example , they receive full particulars from ORG as to the progress being made in the consideration of the case ( such as the appointment of a reporting judge , the lodging of his report , the appointment of an advocate - general and the setting down of the appeal for hearing ) and it is then their responsibility to forward this information to their client .

Unlike members of the ordinary Bar , members of the ORG d’Etat and ORG enjoy the status of officiers ministériels ( ORG - appointed officers ) ; their number is irrevocably kept at TIME , pursuant to an ordinance of DATE . They are appointed by the ORG after a reasoned opinion has been submitted by ORG d’Etat and ORG , the President of ORG and the Vice - President of the PERSON d’Etat .

Representation by a member of the ORG d’Etat and ORG is usually compulsory and any party receiving legal aid is entitled to counsel of his own choosing . However , in certain types of litigation ( such as cases concerning parental authority , industrial relations , immigration and political or occupational elections ) the parties are exempted by law from having to retain a member of the ORG d’Etat and ORG and the procedure is simpler and less formal .

ORG The procedure is set out in LAW to CARDINAL ORG and is the CARDINAL usually followed in appeals to ORG .

ORG The notice of appeal , by which the proceedings are commenced , is lodged with and registered by ORG registry . It is signed by counsel and contains , in particular , details of the decision appealed against . The registrar forwards it to the respondent " immediately " ( Article CARDINAL , first paragraph ) and must at the same time " request the registry of the court which gave the impugned decision to forward the case file to him " ( Article CARDINAL , second paragraph ) .

ORG The appellant must lodge his pleading and serve it on the respondent within DATE , failing which he will be debarred from proceeding with the appeal . That pleading must contain the points of law on which he relies in his appeal , failing which the appeal will automatically be declared inadmissible without its being necessary for ORG to inform the parties beforehand ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . ) I , no . CARDINAL ; DATE , ORG . civ . I , no . CARDINAL ) .

ORG Lastly , the pleading must be accompanied by the decisions and documents referred to in Article CARDINAL ORG , which provides :

" The appellant must file at the registry a copy of the decision appealed against served either on a party or on a lawyer ( avoué or avocat ) or an execution copy of that decision , together with a copy of any decision upheld or reversed in the decision appealed against , within the time allowed for lodging the pleading , failing which the appeal will automatically be declared inadmissible .

The appellant must also annex any documents relied on in support of the appeal . "

More generally , in accordance with long - established case - law , the appellant must supply any document that it is necessary to read for the purposes of understanding and justifying a ground of appeal put forward , failing which that ground may be declared inadmissible ( Court of Cassation judgments of DATE , ORG , CARDINAL , CARDINAL ; DATE , ORG , CARDINAL , CARDINAL ; and DATE , ORG , CARDINAL , CARDINAL ) .

The production required in the first paragraph of Article CARDINAL if the appeal is not to be automatically declared inadmissible has given rise to a considerable amount of litigation , and the courts have clarified the scope of this formal requirement .

ORG As early as DATE ( Court of Cassation , Third Civil Division , CARDINAL DATE , PERSON and Others v. Swietek , ORG no . CARDINAL ) ORG held that the obligation to annex a copy of the decision appealed against " has to be understood as applying not only to the decision appealed against , but also to decisions that are its necessary complement " .

It added subsequently that the filing of the judgment at first instance required by Article CARDINAL was essential because that judgment formed a single unit with the decision on appeal :

" It follows from Articles CARDINAL and CARDINAL of the ORG that the judgment at first instance forms a single unit with the judgment of the court of appeal as regards both its reasoning and the statement of the parties’ claims and arguments ; production of the judgment at first instance is accordingly a formal requirement that is mandatory as a matter of public policy . Any failure to comply with it , which must be raised by ORG of its own motion since the ORG is under an obligation to verify that appeals to it have been properly made , will result in the appeal on points of law being declared inadmissible .

Since the appellant failed to produce a copy of the judgment at first instance as required , the appeal on points of law is inadmissible . " ( Court of Cassation , Third Civil Division , DATE , NORP v. Delambre , ORG . civ . no . CARDINAL )

ORG has further held , firstly , that where conflicting decisions have been given , the appellant must produce the impugned decision of the court of appeal and a copy of the decisions which conflict with each other ( requêtes , DATE , Jurisprudence générale Cassation , no . CARDINAL ) ; secondly , that in the event of an appeal on points of law against a judgment of a court of appeal dismissing a third - party application to set aside a judgment , the appellant must produce a copy of the judgment which gave rise to the application by the third party ( Court of Cassation , ORG , DATE , ORG . civ . II , no . CARDINAL ) ; and , thirdly , that in the event of an appeal on points of law against a decision given on appeal from a judgment of a court of first instance upholding part of a judgment in default on an application to set that judgment aside , the appellant must produce , in addition to the court of appeal ’s decision , the default judgment and the ruling on the application to set it aside , so as to enable ORG to have a complete understanding of the impugned decision ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . III , no . CARDINAL ) .

ORG The issue of inadmissibility was often raised where a copy of the judgment at first instance was included in the case file of the proceedings that was sent by the registry of the court which had delivered the judgment . ORG of ORG held on this point that it could raise the mandatory objection of inadmissibility without informing the parties beforehand ( DATE , ORG , ORG . civ . no . CARDINAL ) . For the legal writers who approved this decision , it was not for ORG to warn parties , who were represented by counsel , of the risk that this appeal would be declared inadmissible if they did not produce the documents in time . ORG only obligation in law is to " inform the parties of any grounds of appeal on points of law which could be raised by ORG of its own motion and invite them to make observations within a time it shall set " ( LAW ) .

Regulated by ORG CARDINAL to CARDINAL ORG , proceedings in which representation is not compulsory are unusual , although many special exemptions are granted . Formalities are kept to a strict minimum .

Notice of appeal may be given merely orally . Notice is given to the court which delivered the decision appealed against , but may also be given in accordance with the procedural rules applying to appeals for which representation is compulsory and be lodged with ORG . The registrar registers the appeal and issues a receipt that reproduces the content of those Articles of the ORG in which the appellant ’s obligations are set out . He informs the respondent in a notice containing the text of the ORG relating to the respondent ’s obligations .

ORG Article CARDINAL ORG provides :

" The registrar shall send the case file to ORG registry without delay together with :

( i ) a copy of the notice of appeal ;

( ii ) a copy of the receipt for the notice of appeal ;

( iii ) a copy of the decision appealed against ; and

( iv ) a copy of the judgment at first instance and any pleadings filed at first instance or on appeal .

He shall immediately send to ORG registry any document which he receives subsequently . "

If the court finds that a document is missing , it stays the proceedings and orders " reconstitution of the case file at the registry of the local court concerned for the purposes of curing the procedural defect " ( Court of Cassation , ORG , DATE , ORG . civ . II , no . CARDINAL ) .

ORG The requirement laid down in Article CARDINAL NCCP for proceedings in which legal representation is compulsory - namely , that a copy of the impugned decision must be produced within the time allowed for lodging the pleading - does not apply to proceedings in which the parties do not have to be represented ( ORG , DATE , ORG . civ . V , no . CARDINAL ) and an appeal will not be invalidated by a failure to comply with the formal requirements for giving notice of appeal .

ORG An appeal on points of law may be declared inadmissible where a failure to carry out a formal requirement prevents the appeal proceeding ( for instance , a failure to identify the respondent or the decision being appealed against ) . The court will of its own motion declare an appeal inadmissible where the appellant has not stated the grounds of his appeal , at least in summary form , in his notice of appeal and fails to state them within DATE of lodging it .

Filing a pleading is optional in proceedings in which representation is not compulsory . If , as a result of an error not attributable to the appellant , a pleading lodged within the prescribed time was not included in the court file with the result that the appeal was declared inadmissible , that decision must be set aside and the appeal declared admissible ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . V , no . CARDINAL ) . In general , ORG is less strict in cases in which representation is not compulsory , where the grounds of appeal may be stated in summary form .