Violation of Art. 10;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr GPE has a degree in technical sciences from ORG and is the author of a thesis submitted to ORG . He is now retired and lives at GPE ( GPE of GPE ) , where he conducts private research in his own laboratory .

NORP In collaboration with PERSON , a professor at ORG and a technical adviser at ORG , Mr GPE carried out a study of the effects on human beings of the consumption of food prepared in microwave ovens . Over a period of DATE , the blood of CARDINAL volunteers who followed a macrobiotic diet was analysed before and after consuming QUANTITY types of food ( some were cooked or defrosted in a microwave oven and the others were raw or cooked by conventional means ) . A research paper was written . It was dated DATE and entitled PERSON über die ORG durch konventionell und i m GPE aufbereitete Nahrung ( “ Comparative study of the effects on human beings of food prepared by conventional means and in microwave ovens ” ) , and it concluded as follows ( translation of an extract from the summary in NORP that was appended to it ) :

… a significant relation was established between the absorption of microwave energy by the food and its transfer to the volunteers’ blood . Thus this energy could be inductively transmitted to human beings by means of the food , a phenomenon governed by the laws of physics and confirmed in the literature [ references to : PERSON , PERSON , GPE , GPE , DATE ; PERSON , Die heutige ORG zerstört sich selbst , ORG für GPE , GPE Brede CARDINAL , PERSON , DATE ] .

The measurable effects on human beings of food treated with microwaves , as opposed to food not so treated , include changes in the blood which appear to indicate the initial stage of a pathological process such as occurs at the start of a cancerous condition . ”

The DATE ORG PERSON devoted part of its nineteenth issue ( DATE ) to the effects on human health of using microwave ovens .

On the cover there is a picture of the Reaper holding out one hand towards a microwave oven , together with the following title :

“ The danger of microwaves : scientific proof ”

In an editorial on page CARDINAL Mr PERSON writes :

To say that our journal is fearless is almost to state the obvious . The Journal PERSON was the first newspaper in the world to pinpoint the dangers of microwave ovens and has kept up its accusations despite massive attacks by the promoters . DATE science proves us right ( see pages CARDINAL–CARDINAL ) . Microwave ovens should be banned . We would not be surprised if the researchers who have had the courage to defend the findings of their research were attacked in their turn , seeing that MONEY are at stake . But truth is in the end more durable than a deal involving CARDINAL at the expense of our health . We shall continue to fight for the truth in this case too .

On the same page the following can be found under the heading Imprint :

“ … Editorial staff : … H.U. GPE , René d’Ombresson … ”

NORP On pages CARDINAL–CARDINAL there is an article by PERSON entitled “ Microwave ovens : a health hazard . Irrefutable scientific evidence ” and the introductory paragraphs are worded as follows :

“ A scientific study demonstrates the health hazards of food prepared by microwave radiation and proves the ORG PERSON right .

Off to the scrap heap and the rubbish dumps with microwave ovens ! The treatment to which they subject food is so pernicious that it causes a change in the blood of whoever eats it and this leads to anaemia and a precancerous condition . These are the findings of a rigorous study carried out by a professor of the ORG [ ORG ] and an independent researcher , who were determined to answer once and for all the crucial question : are microwave ovens harmful or not ? Here is a simplified summary of the study , followed by the study itself for those who are not put off by figures and scientific demonstrations . We were anxious to publish both these , albeit at the risk of repetition , so that the findings should be available to the widest possible public . ”

The article continues ( pages CARDINAL–CARDINAL ) :

“ Simplified summary of the research

… warnings are being given by more and more people : microwave ovens are not harmless .

Legitimate anxieties

Only recently , ORG made public a brief report containing the anxieties of certain researchers , confirming the main points of the findings made by Dr PERSON , an independent researcher , findings which we published in detail in our DATE issue . The claim that microwave ovens were harmful came as a bombshell to technologists and industrialists and provoked wide discussion , which we reported on in the DATE issue of the ORG PERSON .

Giving a scientific reply

The claim was taken seriously , however , by a number of scientists , including Mr H. ORG , Professor of ORG at ORG , who undertook some research in collaboration with PERSON . It is the damning findings of that work that we are summarising here , in its broad outlines , and are publishing for the first time .

Sealing is sufficient …

… [ The ] effects [ of artificial microwaves ] have been known since the last world war thanks to CARDINAL of their applications , radar . …

And food ?

On the other hand , hardly any questions were asked about the quality of food irradiated in this way . It was accepted that such food was neither better nor worse than food cooked by conventional means . But , to our knowledge , no research attempted to answer the question ‘ harmful / not harmful?’

Harmfulness demonstrated

DATE the answer is unequivocal : the use of microwaves for preparing food is harmful . The microwaves impair the organic substances and cause alarming changes in the blood of those who consume them , notably anaemia and precancerous conditions . Those are the findings of the study carried out by Professor Bernard H PERSON and Dr PERSON .

Clinical research

CARDINAL food variants

Incriminating results

Food treated by microwaves caused significant changes in the volunteers’ blood ( a drop in haemoglobin levels , an increase in the haematocrit , in leucocytes and in the levels of cholesterol particularly of the ORG and LDL forms ) . As regards lymphocytes , the drop was more rapid and more marked where the food was a vegetable prepared with microwaves than it was with other variants .

Such changes in the blood count appear to indicate the initial stage of a pathological process such as occurs in a precancerous phase . As the experiment covered DATE , it is reasonable to wonder about the longer - term effects , a fortiori if the effects of the radiation persist .

Long - term effects

Does food irradiated by microwaves absorb the radiation and transfer it to the organism it is supposed to feed ? To answer this crucial question , the researchers applied a known bacterial bioluminescence method which allows the degree of stimulation or inhibition of bacteria in the blood to be measured . The results clearly show that irradiated food irradiates in its turn and that this prolonged effect on the blood must be taken seriously since the phenomenon is CARDINAL of direct irradiation , whose consequences are only too well known .

Measuring the hidden dangers

Burying one ’s head in the sand

The scientific literature on the damage caused to living organisms by direct microwave radiation is particularly voluminous . It is so revealing that it is surprising that the use of microwaves has not long since been replaced by another technique that is less dangerous and better suited to nature . The pernicious effects of microwaves range from the destruction of cell membranes and cell respiration and cell - division disorders to haemolysis ( destruction of red blood cells ) , leukaemia and the blockage of natural cycles .

Aligned - covered

Cathodic constraints

ORG beings in danger !

Not a single atom , molecule or cell can , while remaining whole , resist destructive forces of such power , even if that power is no greater than QUANTITY . When CARDINAL considers that CARDINAL of the weight of plants , animals and human beings is accounted for by water , the biological dangers represented by such microwaves can easily be imagined .

A prey to viruses

In addition to the thermic effects of microwaves , there is an athermic effect , although official science pays little attention to it , no doubt because it is not measurable . But under the influence of these CARDINAL factors molecules are shattered , their structures deformed and their natural functions perverted . … A cell weakened in this way rapidly becomes an easy prey for viruses and fungi .

Like a cancer cell

If the stress is maintained under the influence of the microwaves , the repair mechanism breaks down and the cell , for want of energy , switches to anaerobic respiration ( without oxygen ) . In place of HCARDINALO and COCARDINAL ( aerobic respiration ) there appears , inter alia , the cell poison HCARDINALOCARDINAL and ORG , as can be observed in a cancer cell .

As can be seen , Professor PERSON and Dr PERSON ’s findings are sufficiently alarming for the use of microwave ovens to be rapidly banned , their manufacture and sale to cease and all ovens currently in service to be scrapped . Public health is at stake . ”

Pages GPE contain the following account of the study in question :

“ The complete research paper

Comparative study of the effects on human beings of food prepared by conventional means and food prepared with microwaves

PERSON … PERSON

Introduction

Tolerance thresholds

… The harmfulness of microwaves , and above all their thermic effect on biological systems , was discovered very early on DATE ) . Tolerance thresholds were accordingly established , for microwave ovens as for other applications , in order to avoid the undesirable effects of any leaking radiation .

Harmful or not harmful ?

The quality of food prepared with microwaves has not been officially questioned . It is simply accepted that food prepared in this way is neither better nor worse than food cooked by conventional means . So far as is known , there has not yet been any scientific research which has clarified the possible effects on health of food defrosted or cooked in microwave ovens . Given the widespread use of this method of cooking , is it not appropriate that the question ‘ harmful / not harmful’ should at last be answered scientifically ?

In this study various foodstuffs were accordingly examined firstly in their raw state and secondly in technologically prepared form , defrosted or cooked by conventional means and with microwaves .

Description and mode of action of microwaves on living beings through direct radiation and through food prepared in microwave ovens

Well - known pernicious effects

The scientific literature on the damage to living organisms by direct microwave radiation is particularly extensive . It is so revealing that it is surprising that the use of microwaves has not long since been replaced by another technique better attuned to nature . The pernicious effects of microwaves range from the destruction of cell membranes and cell respiration and cell - division disorders to haemolysis , leukaemia and genetic changes including the blocking of natural cycles .

Infernal radiation

The artificial production of microwaves is based on the principle of alternating current . Matter ( atoms , molecules , cells ) which is irradiated by this electromagnetic radiation thus undergoes , according to the radiation frequency , CARDINAL polarity reversals or oscillations per second . Not a single atom , molecule or cell of a living organism would be able to resist destructive forces of such power , even if it was only of the order of QUANTITY .

Mind the water !

Of all the matter and substances in nature which are polar , the hydrogen in water reacts with the greatest sensitivity . …

Mr PERCENT water , beware !

… the biological effects of artificially created microwaves will be correlated above all with the generation of heat by friction . And since plants , animals and human beings are PERCENT water , it is not difficult to imagine the biological dangers of such microwaves . …

Easy prey for viruses

In addition to the thermic effects of microwaves there is also an athermic effect … , of which little official notice has been taken until now . It is not measurable like the thermic effect . But under the influence of these CARDINAL effects , molecules are shattered , their structure deformed and their natural functions perverted . Such effects are probably qualitative . This pernicious effect at the qualitative level and the weakening of organic systems , such as cell membranes , are used in genetic engineering to gain access to genes . In this way the genes can be artificially altered by radiation . The cells are thus broken into and the energy tension between the outside and the inside of the cell is removed . A cell weakened in this way becomes an easy prey for viruses and fungi .

Danger ! Cell poison

If the stress were to be maintained , inter alia by microwaves , the repair mechanism would break down and the cell , for want of energy , would be obliged to switch to anaerobic respiration . In place of HCARDINALO and COCARDINAL ( aerobic respiration ) there appears , among other things , the cell poison HCARDINALOCARDINAL and ORG as in a cancer cell . This is why leaked radiation from microwave ovens is so dangerous . Yet safety standards vary from country to country . This shows only too well that the problem is far from being resolved , especially as microwave ovens , as we know very well , are not always reliably sealed and become less leakproof with use , as experience has shown .

Danger to the eyes , lungs and endocrine system

The microwaves , which in the light of our scientific knowledge can be identified as the main cause , together with artificial radioactivity , of ‘ electrosmog’ , impair the functions of all living organisms , functions which depend on natural fields . ... It can be expected that these effects will be detectable in the blood count .

As powerful as a television transmitter

Basically , microwaves can produce the same changes in form and structure in food prepared in microwave ovens as they can in living organisms . …

Microwave transmitters on the loose in the organism

Through this irradiation of food the structure of the molecules is likewise broken down and deformed and new substances with lasting effects are created about which science knows very little . Furthermore , this powerful , artificially produced radiation will be induced in the food , which in its turn , by a well - known electromagnetic process , will become a source and carrier of the radiation . The actual process of induction in organic matter is not entirely understood .

A phenomenon unknown in nature

A proper clinical study

Whether and to what extent microwaves are harmful or harmless can at present be determined only by an indirect method – by assessing the effects on living organisms . The present research , based on a method of that kind , is designed to measure the effects of different foodstuffs , cooked by conventional means and with microwaves , as interpreted through changes in the parameters of the blood count of volunteers .

Research plan

Analysis and observation of the food variants

Discussion of the results

General findings

All the measures ( original values and control values ) of erythrocytes , haemoglobin , haematocrits and leucocytes are at the bottom of the normal range of variation . A haematological interpretation shows up indications of a tendency to anaemia among the volunteers .

That situation becomes more marked during DATE , when , together with a further deterioration of the blood parameters , an increased level of cholesterol becomes apparent .

Table CARDINAL summarises the results

( See Table CARDINAL )

The differences in effects on the human organism of food prepared by conventional means or with microwaves are negligible for a single serving . Certain tendencies , however , are visible , in some circumstances significant ones , statistically confirmed by the Rank method .

Appearance of anaemia

In the vegetables prepared with microwaves ( variant CARDINAL ) the erythrocytes tend to increase . Among other blood factors , the erythrocytes have the property of being mobilised ( probably from the spleen ) and rapidly increasing in number in the blood under the influence of short - term stress . If the stress continues , the number falls . Anaemic tendencies thus appear .

ORG in food transit

In unpasteurised milk ( variant CARDINAL ) haemoglobin levels tend to fall , in vegetables cooked with microwaves ( variant CARDINAL) they drop significantly . Haemoglobin deficits are to be regarded as stress indicators . The CARDINAL foodstuffs in question cause stress in the human organism . The digestion of unpasteurised milk is radically different from that of heated milk . The transit of unpasteurised milk through the stomach , because of its coagulation and breakdown , is lengthy and is associated with some stress for the organism . This process , however , is natural , normal and not toxic .

Aggressiveness of milk heated with microwaves

The transit of heat - treated milk through the stomach and intestines is generally more rapid than that of unpasteurised milk . The proteins are transformed to such an extent that they coagulate into magma more quickly . But in this accelerated transit they are not fully broken down . The heated milk thus has a less stressful effect on the organism but its nutritional value is also less . Milk heated with microwaves , on the other hand , unlike conventionally heated milk , clearly creates a situation of stress which is in no way comparable to that caused by unpasteurised milk .

Rheumatism , fever and pituitary insufficiency

Haemoglobin concentration and corpuscular content react like haemoglobin . There is a significant drop in the levels above all in foodstuffs prepared with microwaves ( variants CARDINAL , CARDINAL and CARDINAL) . These losses also indicate anaemia . In the reference literature they are associated with microcytosis ( haemoglobin content ) , poisoning ( chemical , radiation ) and their consequences : rheumatism , fever , pituitary insufficiency , etc .

The haematocrit increases partly significantly in vegetables prepared with microwaves ( variants CARDINAL and CARDINAL) . While the low haematocrit values may indicate anaemia – as a result of repeated pernicious influences – increasing values are more a sign of acute poisoning .

Beware , leucocytes on the increase !

The increase in leucocytes , which exceed the normal DATE variations DATE after consuming food , for example – is taken very seriously by haematologists . Leucocytes are particularly sensitive to external challenges . They are often a sign of pathogenic action on the organic system by poisoning and non - infectious damage to the ( cell ) tissues . The increase in leucocytes in food prepared with microwaves ( variants CARDINAL , CARDINAL and CARDINAL) is greater than with the other variants . The consequences of such a challenge can easily be imagined .

Decreasing lymphocytes

Lymphocytes in principle react to external challenges ( poisons , for example ) in the opposite way to leucocytes . They tend to decrease . They react similarly to haemoglobin . The effect of a challenge is above all observable in unpasteurised milk ( variant CARDINAL ) and in vegetables prepared with microwaves ( variants CARDINAL and CARDINAL) . In these cases DATE initially in every instance – the lymphocytes decrease more significantly than with the other variants .

Cholesterol , the result of stress

Although , according to accepted opinion , cholesterol levels rise only slowly and over a long period , cholesterol and , more particularly , its ORG and LDL constituents increase after consumption of vegetables cooked with microwaves ( variants CARDINAL and CARDINAL) . On the other hand , with milk ( variants CARDINAL to CARDINAL ) the cholesterol level tends to remain unchanged , and in the case of unpasteurised milk ( variant CARDINAL ) it even drops significantly . This most interesting finding bears out the most recent scientific knowledge , according to which cholesterol , in a situation of acute challenge , can also increase rapidly owing not so much to the cholesterol content of food as to an external challenge .

Cholesterol out of nothing

Such challenges , as the present research shows , are also possible through foodstuffs which contain practically no cholesterol . Artificial radiation and poisons ( antigens ) have a cholesterol - forming effect . In an electromagnetic field , cholesterol undergoes changes in its crystal structure and is eliminated from the blood in the form of a deposit . In cancer patients the blood cholesterol level is always very high . This is why a raised blood cholesterol level may be regarded as an obvious sign of a precancerous condition or a developing cancerous condition .

Loss of iron

Iron levels tend to increase in vegetables prepared with microwaves ( variants CARDINAL and CARDINAL) , contrary to all the other variants . PERSON might be thought to be the cause of this phenomenon , being itself a consequence of damage to the membranes of blood cells . Research undertaken up to now does not enable any significant conclusions to be drawn .

Established pathogenic disorders

In sum , the results obtained from analysing the blood count of the volunteers fed on food prepared with microwaves to the exclusion of the other variants show changes which bear witness to pathogenic disorders . They present a pattern which might correspond to the beginning of a cancerous development and deserves attention . These results match the effects of chemico - physiological deformations observed in living cells subjected to microwave irradiation .

Microwaves on the loose in the blood

The luminescence of bacteria in contact with the serum of volunteers who had consumed food irradiated by microwaves is significantly higher than that produced by the blood of other volunteers fed on the other food variants . The possibility of a transfer of the radiation energy by induction , through the consumption of foodstuffs prepared with microwaves , and their effect on a living organism , in this instance the blood , must be considered .

Such physical phenomena are scientifically proved . The destructive power of microwaves through direct irradiation , as attested in the scientific literature ( see the previous paragraph ) , could also have harmful effects on human beings through indirect radiation , through irradiated food . ”

Half of page CARDINAL is taken up with a drawing representing a microwave oven , through the glass panel of which can be seen the head of the Reaper . The same picture , reduced in size , appears on pages CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and DATE .

On DATE Professor PERSON made the following statement :

“ Statement concerning false information about foodstuffs treated or prepared in microwave ovens which appeared recently in ORG ( DATE ) [ and ] ORG ( GPE , DATE ) .

While the published figures and the description of the preliminary experiment are correct , I totally dissociate myself from the presentation and interpretation of the preliminary exploratory experiment carried out in DATE , which was published without my consent by the co - author of the study in the journals cited above .

The results obtained do not in any circumstances justify drawing any conclusions as to the harmful effects of food treated with microwaves or a predisposition to the appearance of a given pathological condition . As the objective publication of the study in a forthcoming issue of the periodical Alimenta ( DATE ) will show , CARDINAL conclusion is unavoidable , namely that it is necessary to undertake , as a matter of urgency , multidisciplinary and multifactorial basic research on the effects on ( certain parameters of ) health of the consumption of food treated with microwaves in comparison with food prepared using other food technologies or culinary techniques .

The major unknown factor is the source of the funds needed to finance such a study . ”

The proceedings against Mr PERSON

On DATE ORG ( “ the NORP ” ) applied to the President of ORG under LAW ( “ the ORG ” ) for an interim order prohibiting Mr PERSON , on pain of the penalties provided in LAW , “ from using … the image of a man ’s skeleton or any other image suggesting the idea of death … associated with the graphic , photographic , oral or written representation of a microwave oven ” , “ from stating … that microwave ovens must be abolished and their use banned ” , “ from stating … that scientific research proves what a hazard food that has been exposed to radiation in a microwave oven is to health and backs up the ORG PERSON ” or “ from stating … that microwave ovens must all be destroyed without exception because food is harmed by these dangerous appliances to such an extent that it causes , in those who consume it , a change in the blood count and leads to anaemia and a precancerous stage ” .

In an order of DATE the President of ORG dismissed the application . Firstly , he expressed doubts as to the applicability of the ORG , noting , in particular , the following :

“ … [ the ORG as amended is ] not … applicable to all forms of unfair behaviour regardless of the sphere in which it occurs . Its purpose is in fact only to ensure fair , undistorted competition ( section CARDINAL ORG ) and it applies only in the context , admittedly understood in a broad sense , of economic competition . The LAW can not , on the other hand , govern fields unconnected with that , such as political , sporting or scientific competition … or the expression of philosophical , moral or religious convictions . In that sense , the issue [ of the existence ] of detriment to a competitive relationship may remain relevant …

In the instant case it may be doubted whether such a relationship has really been damaged or threatened by the defendant ’s campaign against microwave ovens as that campaign is not in any way directed at any particular manufacturer or distributor of such appliances . … The situation is in this respect very different from the CARDINAL ruled on in the judgment published in RO CARDINAL IV CARDINAL , in which a journalist had given erroneous information about the merits of CARDINAL rival brands of sewing machine . … ”

Secondly , he held that , “ supposing the ORG to be applicable ” , LAW CARDINAL of LAW did not allow the relevant interim orders to be made . In this connection , he noted the following reason in particular :

... the imminent infringement of which the [ ORG ] complains is not , prima facie , apt to cause it any damage affecting it personally . On the other hand , some of its members may suffer damage in the form of loss of turnover . ... there is nothing to show that such damage might be very substantial , and it can not be presumed that it will be .

Indeed , no information has been provided on the turnover in respect of microwave ovens achieved by the members of the association , the relation which that turnover bears to the turnover in respect of other appliances , whether there has been any reduction in the sale of microwave ovens since the articles appeared in issue no . CARDINAL of the ORG PERSON or any reconversion to purchases of traditional cookers . Prima facie , it seems doubtful that the defendant ’s campaign has entailed any largescale disaffection of the general public . Admittedly , his journal has a large circulation , but it must be read above all by people who have already made up their minds and who in all probability did not envisage buying a microwave oven . As to other members of the public , while they might have heard about PERSON statements , which have been echoed in the ordinary press , they will also have been aware of the reassuring statements published in particular by the ORG and the ORG [ ORG ] that have also been referred to in the general press . When one sees how ineffective anti - smoking campaigns are , despite being based on undisputed scientific data and being supported by the authorities , it is by no means certain that the defendant ’s statements , even if they were to be repeated , could substantially affect the market in microwave ovens for any length of time .

... In the light , inter alia , of the private expert ’s report by Professor PERSON [ see paragraph DATE below ] , the clarification given by the WHO and the ORG and his own modest knowledge of scientific method , the President takes it as read that the research carried out by Dr PERSON is insufficient to support the categorical conclusions which the defendant thought he could draw from it . The most that can be deduced from that research is that it would be appropriate to carry out a more thorough , rigorously methodical survey on a larger number of people . It is clearly unreasonable to affirm , as was done in issue no . CARDINAL of the ORG PERSON that it has been scientifically proved that microwave ovens are harmful and that they must be immediately destroyed and their use banned . It nonetheless remains the case that some scientists still have doubts about the safety of microwave ovens . The fact that they are in a minority does not of itself enable one to exclude the possibility that they might be partly right , as this is an area in which no certainty exists . Indeed , when the ORG ’s report is read in full it can be seen that there remain a number of unresolved problems .

In these circumstances , and even if it seems highly likely that PERSON statements are wholly unfounded , I can not find that it is absolutely clear that that is the case . ...

… Lastly , the interim orders sought would appear disproportionate at all events . They would in fact lead to a kind of judicial censorship of scientific research and the conclusions that may be drawn from it , and this is scarcely compatible with the living traditions in this country , in which it is generally considered that it is for one ’s peers and not for the courts to assess the worth and significance of a scientist ’s work . ”

The judge nevertheless took formal note of Mr PERSON ’s undertaking

“ … not to use in forthcoming publications of his newspaper or in any other publications or at press conferences , public events or presentations to the media images of a skeleton or a cross or tomb in association with the presentation of a microwave oven ” .

On DATE Mr PERSON made the following statement ( translated from NORP ) :

“ We refer to the summary which appeared in issue no . CARDINAL … of the ORG PERSON under the title “ Microwave ovens : a health hazard ” and certify that Mr PERSON and PERSON can not be held responsible for either its form or its content , for which sole responsibility lies with the editor . The same applies to the cover page . Furthermore , we should like to point out that the title and sub - title of the research report which followed it were likewise the editor ’s responsibility .

We must also expressly emphasise that Mr GPE has never been a member of our newspaper ’s editorial staff or paid as such . The fact that Mr GPE ’s name ( like Dr PERSON ) appeared in the imprint under the heading Editorial staff instead of under Contributors to this issue was due to a mistake in the editorial office . ”

The ORG asked Mr PERSON to publish a statement to the effect that he would no longer make unfair comments on microwave ovens . He did not reply .

On DATE the association lodged an application under the ORG with ORG ( ORG ) of the GPE of GPE , seeking to have Mr GPE prohibited , on pain of the penalties provided in LAW ( imprisonment or a fine ) and LAW a fine of MONEY or imprisonment , in serious cases for DATE ) , from stating that food prepared in microwave ovens was a danger to health and led to in the blood of those who consumed it changes that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process , and from using , in publications and public speeches on microwave ovens , the image of death , whether represented by a hooded skeleton carrying a scythe or by some similar symbol .

As before the President of ORG , the plaintiff association produced a private expert ’s report by Professor PERSON of ORG of ORG . The report , dated DATE , concludes ( translated from NORP ) :

“ PERSON and GPE ’s experiments on the harmfulness of food heated by microwaves and their interpretations of them were not conducted and described according to scientifically recognised criteria . They are of no scientific value ; the conclusions drawn from them as to the alleged harmfulness of food cooked by microwaves have no verifiable basis and are unsustainable . ”

In a judgment of DATE ORG allowed the application . It gave the following reasons ( translated from NORP ) :

“ CARDINAL . …

The amended ORG differs from the former enactment in having substantially wider scope . Its key characteristic is its functional approach , based on guaranteeing fair , undistorted competition . That approach is apparent from the new drafting of the Act ’s protective aim in section CARDINAL ORG and has led to a new definition of the offence of unfair competition in the general provision of LAW . The requirement of a competitive relationship , for instance , has been removed from the LAW . Its personal scope , as apparent from section CARDINAL , does not cover only the acts of competitors , suppliers and customers ; third parties not involved in such relations may be ( independently ) liable if their conduct affects relations in the context of economic competition and if , through their statements , they adversely affect the competitive position of the person targeted ( see NORP and ORG , ORG , p. CARDINAL ) . Competition is particularly affected by consumer - protection organisations , but also , for example , by reviewers , art critics and media personalities . Also caught by the LAW are the authors of financial analyses , company reports and – what is of importance here – scientific studies , provided that the essential elements of the offence of unfair competition are present ( PERSON , SZW CARDINAL/CARDINAL , p. CARDINAL ) . In the event of inaccurate , misleading or unnecessarily derogatory statements concerning the subject of study , these people will be guilty of unfair competition . The new wording of section CARDINAL ORG has thus put an end to the old controversy as to whether the application of the LAW requires the existence of a competitive relationship . Persons unconnected with a sector who interfere in the competition between third parties are likewise caught by LAW ( PERSON , PERSON , p. CARDINAL ; cf . FAC CARDINAL IV CARDINAL : ORG ) . In each case , however , it must be ascertained whether the behaviour of the person concerned affects the relations between competitors or between suppliers and customers . The LAW is directed at all those whose behaviour or commercial management may have an effect on economic competition . The decisive factor is whether the activity complained of has direct or indirect effects on the competitive position of the person making it or of a third party ( GPE , GPE Wettbewerb , GPE DATE , pp . CARDINAL and DATE ) . Both according to legal writers and in practice , economic relevance in the sense of a potential aptitude to affect competition is taken into account ( see PERSON , PERSON i QUANTITY UWG , SMI DATE , pp . CARDINAL et seq . ) . Capability of affecting competition must be determined objectively ; it is of no importance whether given behaviour is associated with a subjective intention to affect the market ; the decisive factor is whether the action in question is objectively apt to affect competition ( PERSON , ibid . , p. CARDINAL ; cf . ORG , pp . CARDINAL et seq . : ORG ) . This was so in the instant case , as was set out above in relation to the question of the plaintiff ’s locus standi . Even if there is no certain proof of a connection between the drop in turnover in respect of microwave ovens and the [ defendant ’s ] behaviour , it is clear that the statements and publications complained of in the instant case are apt to diminish sales of microwave ovens and , consequently , to harm the businesses associated with the plaintiff . The objective aptitude to affect competition is therefore established .

Section CARDINAL ORG defines as unfair and illegal ‘ any conduct or commercial practice ... if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and ORG . The general provision of LAW is given concrete expression by the provisions of sections CARDINAL to CARDINAL , which describe the special factual ingredients ( NORP ) of the offence . Section CARDINAL(a ) provides that a person acts unfairly if , in particular , he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements . Unfair competition does not necessarily presuppose either bad faith or fault , but merely an objective breach of good faith ( BGE CARDINAL PERSON , CARDINAL ) . A statement is ‘ inaccurate’ if it can objectively be seen to be false ( NORP and Troller , p. CARDINAL ) . A statement is ‘ ORG if , while not untrue , it creates a false impression through the use of devious means ; as with the risk of confusion in the context of trademark disputes , the yardstick to be used here is that of the usual vigilance and discernment of the customers targeted . A statement may be ‘ unnecessarily wounding’ in various ways . Firstly , the manner in which a statement is made may be considered improper if it goes far beyond what would appear reasonable in the light of what had caused the statement to be made . Secondly , even where an accurate factual basis exists , the value judgments expressed may be unlawful if they appear unjustified on the facts . Lastly , a statement may also be wounding if it is inaccurate or is mainly and without good cause intended to harm another . Criticism that is impermissible in form , content or aim is therefore unacceptable … It has already been held in ORG CARDINAL no . CARDINAL … that the description ‘ dangerous’ was derogatory in character . Advertising based on fear , using expressions such as ‘ take X , otherwise it will be too late’ , ‘ do n’t take any risks’ , ‘ better too early than too late’ , ‘ tooth decay is lurking’ , or even simply ‘ keep your ORG is also unacceptable …

… it is certain that it can not be said that it is scientifically proved that food prepared with a microwave oven constitutes a danger to health and is carcinogenic . To date , there has been no scientific evidence that such a danger exists . The defendant ’s assertions are not corroborated either by his own research DATE which did not meet generally accepted scientific standards DATE or by that of other , respectable scientists . The opposite would seem to be nearer the truth , as is shown by the observations of ORG and ORG . In that regard , the fact that Professor PERSON clearly dissociated himself from the conclusions drawn by the defendant from their joint research is likewise significant . The defendant ’s statements that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it that indicate a pathological disorder and present a pattern that could be seen as the beginning of a carcinogenic process are manifestly false and untrue and consequently inaccurate within the meaning of section CARDINAL(a ) ORG . The application must therefore be allowed . The applicant remains of course free to base his propositions on new scientific findings .

There would nonetheless have been a breach of the ORG even if the defendant ’s belief had been objectively accurate since , as has already been said , section CARDINAL(a ) ORG also prohibits misleading or unnecessarily wounding statements . Such statements were made in the present case as will be explained in greater detail under point CARDINAL below .

The ORG can not share the opinion of Professor PERSON , published in ORG DATE , p. CARDINAL and cited by the defendant , that for an unfair act to affect competition within the meaning of section CARDINAL ORG there must be a corresponding intention , that is to say a subjective wish to have an impact on competition . That view is inconsistent with the aim pursued by the ORG , which is to guarantee , in the interests of all the parties concerned , fair , undistorted competition ( see section CARDINAL ORG ) ; those concerned are thus competitors , customers and the general public ( ‘ tripartite nature’ of competition law and ‘ equivalence’ of the CARDINAL interested groups , PERSON , pp . CARDINAL and DATE ) . There is consequently nothing in the LAW to support that opinion . An amendment to the LAW would be necessary for that ( cf . PERSON , ZSR CARDINAL I , DATE , pp . CARDINAL et seq . , with reference to ORG reply to the motion of a national councillor , PERSON , concerning a revision of the ORG , ORG of DATE ) . … The principle of good faith mentioned in the general provision of section CARDINAL ORG , which is decisive of the issue of fairness and therefore of legality , must be construed in the light of the Act ’s purpose and the special factual ingredients of section CARDINAL(a ) ORG . These define in greater detail the unlawful conduct , for which no fault is required , constituting the tort of ‘ unfair competition’ . No competitive relationship between the ‘ ORG and the ‘ victim’ is required under LAW ( see above ) . All that is needed is behaviour apt to affect competition ; a very weak link with an economic activity will thus suffice ( GPE , Unlauterer Wettbewerb , p. CARDINAL ; cf . also BGE CARDINAL IV , pp . CARDINAL et seq . : ORG ) ; that is a consequence of the functional conception that governed the revision of the LAW . The new ORG was intended to enlarge the sphere of protection afforded by the LAW . Thus , in the light of the provision setting out the aim pursued by the LAW and of the general provision of the LAW , the requirement of an intention to affect competition is incompatible with the definition of the tort of unfair competition within the meaning of the general provision of section CARDINAL ORG , as it is not contained in that definition ( cf . PERSON , loc . cit . , p. CARDINAL ) . Anyone who in his media work seeks to cause a scandal or a sensation is also caught by LAW Freedom of the press does not relieve those concerned from the obligation to comply with professional ethical standards – on the contrary , it takes such an obligation for granted ( GPE , loc . cit . p. CARDINAL , cf . PERSON , loc . cit . , p. CARDINAL ) .

Even if the ORG were to accept Nobel ’s opinion , it would not in the instant case be led to a different conclusion . Intention ( PERSON ) is a particular form of knowledge that one is acting wrongly ( PERSON ) . For such intention to exist , it suffices that the person concerned is aware of the possibility that the act will be carried out and that he accepts that possibility ( recklessness ; cf . Stark , PERSON , ORG , notes CARDINAL et seq . , pp . CARDINAL et seq . ) . As a subscriber to the ORG PERSON the defendant knew to whom he was sending the research paper for publication . He thus accepted the simplistic and exaggerated interpretation of the published article , and he also endorsed the publication in its entirety since at no stage did he dissociate himself from even part of it in writing but , while not considering it to be PERCENT accurate , nevertheless approved it with the representation of the Reaper .

Since the scope of the ORG is determined by the mere potential aptitude to affect competition , acts performed in the exercise of fundamental rights in the field of ideas are covered by it , even when they have only a remote link with economic activity ; only acts that are no more than ideas fall outside the scope of the statute , provided that they are confined to a strictly personal sphere of activity ( GPE , loc . cit . , pp . CARDINAL et seq . , PERSON , ORG , p. CARDINAL ) . In that respect , whether or not the activity concerned is remunerated is irrelevant . However , an act will not be caught by the ORG merely because it is performed outside the private sphere . It is necessary that there be a link , however weak , with an economic activity . Acts that are performed for purely disinterested ends are not covered by the ORG . Such would be the case , for example , with associations whose activity is wholly disinterested . An association will be disinterested if it pursues altruistic aims and does not deal in the ( economic ) market . If it does so deal , even without seeking to make a profit , it will lose the exemption ( GPE , loc . cit . p. CARDINAL ) .

The freedom to carry out scientific research , which can be considered a fundamental right ( see PERSON , PERSON , pp . CARDINAL et seq . ) has not been infringed in the instant case . The defendant was and remains entitled to pursue his research . The majority of legal writers consider that scientific freedom includes the freedom to carry out research , to teach and to use the result of research done by others ( see PERSON , loc . cit . ) . In that regard , it is necessary to distinguish scientific freedom from the freedom to communicate to others the knowledge gained . Like practically all fundamental rights , this freedom of expression ( as an unwritten fundamental right ) is not , however , without limits in its application . It is subject to restrictions , especially in the sphere of the mass media , by the legal order , which provides for the protection of reputation in LAW and for protection of all aspects of the personality , including economic ones , in LAW and the ORG ( see PERSON , loc . cit . , pp . CARDINAL et seq . ; ORG CARDINAL : ORG ) . Scientific freedom does not therefore justify publication – especially in non - specialist periodicals ( publication in specialist reviews would have to be considered differently ) – of provisional results of research that are misleading or devoid of sound scientific basis and do not enable conclusions to be reached with certainty . Scientific researchers must be aware of their responsibilities and give consideration to the issue of what status laymen will give to the expression of their opinion . These constraints apply to the defendant likewise . The mere fact that the application of a statute affects the exercise of a fundamental right by no means signifies that the restriction of that right is unlawful . When it enacted the ORG , the legislature knew perfectly well that there was a risk that the statute would come into conflict with the protected area of intellectual freedoms . That is why section CARDINAL ORG provides , by way of a cross - reference to LAW and CARDINAL f of LAW , that preventive measures against periodicals may be ordered only in the strictly limited circumstances set out in LAW . In the absence of more detailed provision , the assumption must be that no privilege should attach to facts such as those in the instant case . Independently of that issue , it must also be observed that , on the basis of the principle that there is no hierarchy of fundamental rights ( see ORG untereinander , thesis , GPE DATE , pp . CARDINAL et seq . ) , it is necessary to weigh against the fundamental rights relied on by the defendant the right to freedom of trade and industry .

An essential feature is how language is used to communicate a scientific opinion when knowledge is still uncertain and , for example , is based solely on sample surveys or experiments involving small numbers of people ( CARDINAL in this instance ) who do not represent a cross - section of the population . The more clear - cut the reports of opinions , the stricter are the requirements to be made of the linguistically correct representation of the opinions concerned . It is also significant that , even after the event , the defendant did not distance himself from gross simplifications and exaggerations in the article or from the image of the Reaper with a microwave oven , which appears on every page of the research paper .

Since the defendant has identified himself with the article in its entirety , the plaintiff ’s application must , in terms of competition law , be allowed . Through his assertions , which have been mentioned in detail above , and the use of the image of the Reaper , for which he is liable as he knew the style of the review and accepted and approved that exaggerated representation , the defendant has , irrespective of whether the substance was true , overstepped the acceptable limits and has thus acted ‘ unnecessarily woundingly’ within the meaning of section CARDINAL(a ) ORG . By combining a tabloid - style report with scientific comment he has also misled the intended readership . In particular , the image of the Reaper and statements such as ‘ microwave ovens are more harmful than the GPE gas ORG , ‘ … you are exposing yourself to a slow death … ’ , or ‘ … it is certain that you will die from cancer … ’ … amount to unacceptable playing on the fear of death . The defendant himself had to admit that the journalist from the ORG PERSON had gone a bit too far and that his article was a little tendentious . He said that he had not liked that very much as a scientist , but the reporter had nonetheless been right . It was sometimes necessary to use a journalistic style to wake people up ...

Among other forms of protection , the civil law affords the possibility of applying for an injunction ( PERSON ) . The purpose of such an application is to obtain from the court an order prohibiting the defendant from interfering in the plaintiff ’s sphere of interest . Such an order may concern existing or continuing interference and threatened interference . The court may allow such an application irrespective of whether damage has been caused ( NORP and ORG , p. CARDINAL , ORG CARDINAL ) . Applications may be lodged and injunctions issued only in respect of precisely defined acts which the defendant has committed and is likely to continue to commit or is about to commit ( BGE CARDINAL II CARDINAL ) . That is clearly true in the instant case , especially as the defendant has expressly stated that he will continue to follow that route scientifically … and has not distanced himself from the publications in issue . To the application for an injunction there may be joined an application for an order that , if he breaches the injunction , the defendant shall be punished with imprisonment under LAW or a fine ( BGE CARDINAL II CARDINAL ) . That penalty must be supplemented by the one provided for in LAW .

On an application by the applicant , ORG ( ORG ) delivered the following judgment on DATE ( translation from NORP ) :

The appellant submitted that the ORG was not applicable in the instant case since the statements complained of were made disinterestedly with a view to protecting public health and not in a context of competition .

( a ) The ORG is intended to guarantee , in the interests of all the parties concerned , fair , undistorted competition ( section CARDINAL ) . Consequently , any conduct or commercial practice is unfair if it offends the principle of good faith and affects relations between competitors or between suppliers and customers ( section CARDINAL ORG ) or is apt to affect them ( Cherpillod , ‘ L’application de la loi contre la concurrence déloyale aux journalistes’ , résumé of a lecture of DATE , given to ORG , p. CARDINAL ) . When the ORG is applied with a view to preventing distortions in competition in the private sector , however , the conduct of persons who are not in competition with the supplier or customer affected may also be classified as unfair . That is indisputably the position according to current legal theory and the case - law ( BGE CARDINAL IV CARDINAL E. CARDINAL , pp . CARDINAL et seq . and references , QUANTITY , p. CARDINAL ; Nobel , PERSON GPE für die GPE , in GPE DATE , pp . CARDINAL et seq . ; ORG , PERSON , in ORG droit européen de la concurrence déloyale en formation , pp . CARDINAL et seq . and p. CARDINAL ) . Notwithstanding that no competitive relationship is required , only conduct that can be described as an act of competition is prohibited , that is to say acts which are objectively aimed at affecting competitive relationships and not those which take place in a wholly different context . For the purposes of the ORG the conduct of the tortfeasor must therefore be related to the market or competition ( ‘ marktrelevant , marktgeneigt oder wettbewerbsgerichtet’ – Schluep , loc.cit . ) . Competition can only exist where the action of the person concerned has , or is apt to have , an effect outside the private sphere ( GPE , Unlauterer Wettbewerb , p. CARDINAL ) . Consequently , the only acts that are competition - related are those which increase or reduce the market share or the rate of success in finding customers of businesses formed with a view to profit or which objectively pursue those aims ( see PERSON , PERSON , CARDINALnd ed . , DATE , p. CARDINAL ) . The decisive factor , as the court below rightly pointed out , is economic relevance in the sense of a potential aptitude to affect competition ; for that purpose , an objective aptitude is sufficient and it is of no importance whether there was a subjective intention of intervening in the economic sphere . That being so , it is of no help to the appellant to rely on the academic legal theory that , although the need for a competitive relationship has been dispensed with , an act committed with the intention of affecting competition is required in all cases for there to be an infringement of the ORG ( Nobel , loc . cit . , passim ) . Quite apart from the fact that that theory entails the risk of confusion between the concept of illegality and elements of the notion of fault , the appellant is confusing motive and intention . He does not deny that he is seeking to protect consumers by influencing their behaviour in the market and thereby affecting the sales market for the product he criticises . That clearly shows a competitive intention , even if it is prompted by idealistic motives and not by the pursuit of gain .

( b ) Scientific research and publications are not in themselves directed at competition if they remain within the academic context ( PERSON , loc . cit . ) . They so become , however , if the target readership may objectively construe the scientific opinions as being designed to influence the behaviour of market players and , in particular , of customers . It is unnecessary to explain this in greater detail where science is used as a disguised means of advertising and where scientific knowledge may serve to boost a product ’s sales ( GPE and GPE , GPE , CARDINALth ed . , DATE ... ) . The same must apply , however , where allegedly scientific statements are used in a competitive context to influence negatively the sales of a particular product through denigration of it . Such statements likewise amount to acts of competition covered by the ORG and are subject to its requirement of fairness ( Baumbach and GPE , loc . cit . ) .

The statements held against the applicant are , in both content and presentation , regard being had in particular to the readership of the periodical concerned , clearly intended to influence the market since , at least objectively , they are unmistakably aimed at deterring consumers from buying and using microwave ovens . They are thus apt to affect competition . That is why ORG rightly considered that they came within the scope of the ORG and therefore examined whether they should be described as unfair within the meaning of that Act .

( a ) The appellant considers that the order prohibiting his using symbols evoking death is contrary to federal law as it was not he who was responsible for the use of the image of the Reaper in the Journal PERSON in respect of which the injunction was imposed and so no recurrence is likely . The ORG emphasised that it remained unproved that the appellant had taken part in the design and editing of the periodical or that his approval had been sought before the article in question appeared . The appellant had , however , become aware of the tenor of the article because he was a subscriber to the review but had not distanced himself from it in any way and had even said , at the trial , that he liked the image of the Reaper . The court concluded that the appellant had knowingly accepted his research paper being used in a simplified and exaggerated manner and had approved the publication in its entirety .

ORG prohibited the appellant ‘ from stating that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it that indicate a pathological disorder and present a pattern that could be seen as the beginning of a carcinogenic PERSON . The appellant says that that prohibition is contrary to federal law since the prohibited statement is not unfair within the meaning of the ORG and enjoyed the protection afforded to fundamental rights .

( b ) As already indicated , given the readership to which his statements were addressed and the scientifically unsophisticated content of those statements , the appellant has left the purely academic sphere and entered the realm of competition . He is therefore subject to the fairness requirement laid down by the ORG .

Section CARDINAL(a ) ORG provides that a person acts unfairly if he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements . In the appellant ’s defence , it must admittedly be acknowledged that it is not always easy to establish the degree of scientific truth of an assertion , since in this sphere of knowledge , what is held to be true DATE will often be superseded DATE and true again the day after ( GPE and GPE , loc . cit . , ... ) . That does not , however , mean to say that ostensibly scientific views on one ’s own work or the work of others in the competition field must always unconditionally be considered fair . When an opinion relating to the market refers to a question that is professionally controversial and is presented as being objectively accurate or scientifically confirmed , that means that the party concerned has opted in favour of a particular opinion and is ready to answer for its accuracy also in the context of competition ( ORG , CARDINAL , in GPE DATE , pp . CARDINAL et seq . , PERSON , p. CARDINAL ) . Positive or negative advertising containing scientific data must , accordingly , in the public interest and in order to ensure effective competition , only be accepted if the data reflect established scientific knowledge or at least if the advertising clearly states that there are differing opinions . If there is no absolute guarantee that the scientific data are correct , the uncritical publication of them is at least deceptive and is accordingly misleading within the meaning of section CARDINAL(a ) ORG ( Baumbach and PERSON , loc . cit . , ... ) . That was so in the instant case . According to ORG there is absolutely no scientific confirmation of the applicant ’s argument ; on the contrary , it has been mostly rejected . To hold it out as accurate in the context of competition is unacceptable under section CARDINAL(a ) ORG , and accordingly the injunction issued by ORG does not infringe any provision of federal law .

( c ) There can be no question of the ORG ’s having been applied in breach of LAW or LAW Statutes must , in particular , define fundamental rights and other , conflicting duties of the ORG so that these CARDINAL concerns of constitutional law may be taken into consideration to the greatest possible extent ( PERSON , PERSON schweizerischen ORG , p. CARDINAL ) . This notion of regulation and the values underlying it must also be taken into account in the drafting of statutes . The smooth operation of competition and economic freedom , freedom of expression , scientific freedom and freedom of the press must be guaranteed as well as possible , but at the same time limited so that the various constitutional objectives may be reconciled in practice . In that regard , it should be noted that the ORG provides a remedy only in respect of unfair statements , and the meaning and purpose of freedom of expression or freedom of the press can not be to legitimise unlawful public assertions of that kind . ( PERSON , PERSON des Bundesgesetzes gegen den unlauteren GPE ( GPE ) für die GPE , in ORG CARDINAL , pp . CARDINAL et seq . ) . Anyone claiming scientific freedom is therefore wholly free to expound his knowledge in the academic sphere but , where competition is concerned , he may not claim to have the truth on his side where the opinion he is putting forward is disputed . An opinion which has not been confirmed scientifically must in particular not be misused as a disguised form of positive or negative advertising of CARDINAL ’s own work or the work of others . In the present case , that is all the more true as ORG expressly left the applicant free to base his proposition on new scientific findings .

The appeal must therefore be dismissed … ”

Section CARDINAL of LAW of DATE reads as follows :

“ CARDINAL . Any abuse of economic competition resulting from deception or any other conduct contrary to the principle of good faith shall be deemed to be an act of unfair competition within the meaning of this Act .

The principle of good faith is not complied with where , for example , a person

( a ) denigrates others or the goods , work , activity or business of others by making inaccurate , misleading or unnecessarily wounding statements ;

The Act of DATE was repealed by LAW of DATE , the relevant provisions of which are as follow :

Section CARDINAL

“ This Act is intended to guarantee , in the interests of all the parties concerned , fair , undistorted competition . ”

Section CARDINAL

“ Any conduct [ ORG ] or commercial practice [ ORG ] shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers . ”

Section CARDINAL

“ A person acts unfairly if , in particular ,

( a ) he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements ;

Section CARDINAL

“ CARDINAL . Anyone who through an act of unfair competition sustains or is threatened with damage to his goodwill , credit , professional reputation , business or economic interests in general , may apply to a court :

( a ) to prohibit the act if it is imminent ;

( b ) to order that it cease , if it is still continuing ;

( c ) to declare it unlawful , if the interference it has caused persists .

He may , in particular , seek an order that a rectification or the judgment be communicated to third parties or published .

He may also , in accordance with LAW , bring an action in damages and for reparation of non - pecuniary damage and require that any gain be handed over in accordance with the provisions on intermeddling . ”

Section CARDINAL

The actions provided for by section CARDINAL , sub - paragraphs CARDINAL and CARDINAL , may also be brought by :

( a ) professional associations and economic associations whose memoranda and articles of association authorise them to defend the economic interests of their members ;


Violation of P1-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant held positions as head of the education department of ORG ( Qafqaz Müsəlmanlar İdarəsi , the official governing body of NORP religious organisations in GPE ) , member of the PERSON ( NORP Judges ' ) Council ( PERSON ) of ORG , and director of the PERSON branch of ORG . He was also a founder and editor - in - chief of a journal called PERSON , published since DATE and printing various articles with an NORP religious content .

On an unspecified date , the applicant lodged an application with ORG ( “ the ConEC ” ) for the single - seat ORG No . CARDINAL for registration as a candidate in the upcoming elections to ORG ( ORG ) on DATE . Together with the application , he submitted a written undertaking to terminate any professional activities incompatible with the office of member of parliament .

According to TIME of the joint meeting of ORG of ORG held on DATE , the applicant 's membership of ORG was terminated on the basis of his own resignation letter . It was noted that the resignation was accepted in view of the applicant 's having nominated himself as a candidate for the parliamentary elections .

According to an order issued by the chairman of ORG on DATE , the applicant was relieved of his positions as head of the ORG 's education department and director of the PERSON branch of ORG .

On DATE the ConEC refused to register the applicant as a candidate because he “ was continuing his activities as a professional clergyman ( peşəkar din xadimi ) ” , which were incompatible with the requirements of Article CARDINAL of LAW .

The applicant complained about this decision to ORG ( “ the ORG ” ) . On DATE the ORG rejected the applicant 's complaint . The entire ORG decision consisted of the following :

“ [ The ORG ] , having examined the complaint of ORG , who has nominated himself for election to PERSON ... , in accordance with Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW and LAW and CARDINAL of the Law of CARDINAL DATE on the approval and entry into force of LAW , decides :

To reject the complaint of ORG as unsubstantiated . ”

NORP The applicant lodged an appeal against this decision with ORG , complaining that his candidacy had been terminated unlawfully as he had resigned from all positions involving “ professional religious activity ” and was no longer engaged in any religious activities . On DATE ORG rejected his appeal , finding that the ORG 's decision was lawful . Specifically , ORG noted :

“ According to the materials in the case file , ORG , who has nominated himself for election to PERSON , is a clergyman .

According to LAW , the right of clergymen ... to participate in elections may be restricted .

According to the requirements of LAW , clergymen may not serve as members of the Milli Majlis while they are engaged in professional religious activity .

The applicant 's arguments that he had been relieved of his positions with ORG and ORG can not be considered as a ground for upholding his claim .

Specifically , the fact that [ the applicant ] has been relieved of the above - mentioned positions does not rule out his engaging in professional religious activity .

On the other hand , according to LAW , a clergyman may not be elected as a member of ORG .

Accordingly , given that the decision of ORG was in compliance with the requirements of the LAW and LAW , the arguments advanced in the applicant 's appeal can not be considered as a basis for quashing this decision . ”

The applicant lodged a cassation appeal against this judgment with ORG . On DATE ORG dismissed the appeal using the same reasoning .

The applicant attempted to have the proceedings reopened and the case reviewed by ORG , by lodging an additional cassation appeal with ORG President . On DATE ORG President rejected his request , finding no grounds for reopening the proceedings .

Lastly , the applicant lodged a constitutional complaint . By an inadmissibility decision of DATE , ORG refused to admit the complaint for examination on the merits , finding that the applicant had essentially disputed the factual findings of the courts of general jurisdiction ( specifically , on the question whether the applicant was actually engaged in any “ professional religious activity ” ) . ORG noted that it had no competence to review the correctness of the It also stated the following with regard to the restriction of clergymen 's right to stand for election in general :

“ According to LAW , GPE is a democratic , secular , unitary republic governed by the rule of law . LAW ( I ) of the LAW provides that religion shall be separate from the ORG . In this context , the above provisions must inevitably be taken into account in the constitutional rules on formation of the supreme elected government body .

The restriction on the election of clergymen to government bodies , which is based on the demands of the public interest , has the primary aim of separating religion from the ORG . The restriction serves the purposes of removing matters inherent in the ORG 's functioning from the sphere of influence of religious communities , clerics and religious figures , and keeping such influence to a minimum .

Another aim of the restriction is to separate religious voters from the clergy in the context of the election process , as a means to ensure that voters form their opinions and make their choice free from any undue interference .

It must be noted that the legal systems of a number of other GPE also provide for restrictions on the right of clergymen to stand for election . ...

Article CARDINAL.CARDINAL.CARDINAL of the Electoral Code provides that clergymen can not be members of the Milli Majlis , President of the Republic , or members of municipalities while they are engaged in professional religious activity . As such , the legislator applied the “ religious - based eligibility requirement ” restricting clergymen 's right to serve as members of parliament only to periods when the latter are engaged in professional religious activity . ”

At the material time , the relevant provisions of the LAW provided as follows :

“ I. The NORP State is a democratic , secular , unitary republic governed by the rule of law . ... ”

“ I. Religion is separated from the ORG in GPE . All religious faiths shall be equal before the law .

II . The spreading and proselytising of religions which undermine human dignity and contradict the principles of humanism shall be prohibited .

III . The ORG education system shall be secular . ”

“ I. Citizens of GPE shall have the right to elect and be elected to the institutions of government , and to participate in referendums .

II . Persons whose legal incapacity has been determined by a court decision shall not have the right to participate in elections and referendums .

III . Members of the armed forces , judges , ORG officials , clergymen ( din xadimləri ) , persons imprisoned pursuant to a final court judgment , and other persons specified in this LAW and in legislation may be subject by law to restrictions on their right to participate in elections . ”

“ I. Every citizen of GPE not younger than DATE may be elected as a member of the PERSON ... in a manner stipulated by law .

II . Persons who have dual citizenship , those who have obligations vis - à - vis other GPE , those who work within the system of the executive or judicial power and those who carry out any other types of remunerated activity except scientific , pedagogical or creative activities , clergymen ( din xadimləri ) , persons whose legal incapacity has been determined by a court decision , those who have been convicted of serious crimes and those who are serving prison sentences pursuant to a conviction under a final judgment , can not be elected as members of the Milli Majlis ... ”

At the material time , the relevant provisions of LAW provided as follows :

“ CARDINAL . Except for the cases stipulated in LAW and in this Code , every citizen who has active electoral rights shall also have passive electoral rights , that is , he or she shall have the right to form a referendum campaign group and to be elected as a member of ORG , as President or as a member of a municipality , provided he or she meets the candidacy requirements laid down by LAW for these offices .

Restrictions on passive electoral rights shall be established by ORG DATE , and CARDINAL of the LAW of GPE and by this Code .

Pursuant to Articles CARDINAL ( III ) , CARDINAL of the LAW of GPE , the following persons shall not have passive electoral rights , that is , they shall not have the right to be elected as a member of the Milli Majlis , as President or as a member of a municipality :

persons serving prison sentences pursuant to a conviction under a final judgment ;

CARDINAL.CARDINAL.CARDINAL . persons convicted of the crimes under Articles CARDINAL - CARDINAL.CARDINAL of LAW of GPE ;

CARDINAL.CARDINAL.CARDINAL . NORP citizens of GPE with dual citizenship ( until their second citizenship expires ) ; and

NORP citizens of GPE who have obligations vis - à - vis foreign States ( until such obligations are terminated ) ... ”

“ CARDINAL . Cases of incompatibility of positions shall be established by ORG DATE and CARDINAL of the LAW and by this LAW .

Pursuant to LAW ) of LAW , the following persons shall not have the right to serve as members of the Milli Majlis , as President or as members of municipalities , by virtue of the positions they occupy :

CARDINAL.CARDINAL.CARDINAL . Members of the armed forces ( while in military service ) ;

CARDINAL.CARDINAL.CARDINAL . Judges ( while in office ) ;

Civil servants ( while in ORG service ) ; and

CARDINAL.CARDINAL.CARDINAL . Clergymen ( din xadimləri ) ( while engaged in professional religious activity ( peşəkar dini fəaliyyət ilə məsğul olduqları müddətdə ) ) . ”

An application containing a written undertaking by the candidate to terminate any activities incompatible with a post in an elected ORG or municipal body shall be submitted together with the notification mentioned in LAW . This application shall contain information on the candidate ( [ including ] his or her official workplace ( or type of activity , if not working ) ... ”

“ CARDINAL . All the registered candidates and referendum campaign groups shall have equal rights and responsibilities , taking into account their status .

Registered candidates and authorised representatives of referendum campaign groups who are in ORG or municipal service or who work in the mass media under an employment or civil contract shall be released from performing their official duties during the period of their participation in the election ( referendum ) campaign ( this rule shall not apply to the [ current ] President of GPE , [ current ] members of the Milli Majlis or [ current ] members of municipalities ) . The approved copy of the relevant order [ on release from performing official duties ] shall be submitted to the electoral commission registering the above - mentioned candidates or authorised representatives within DATE , at the latest , from DATE of registration . Such candidates or authorised representatives shall not abuse their official authority or positions in order to gain privileges or advantages . ”

“ CARDINAL members shall be elected to the Milli Majlis from single - seat constituencies ( CARDINAL member per constituency ) . ”

“ The citizens of GPE indicated in LAW may be elected as members of the Milli Majlis ... ”

At the material time , the Law on Freedom of Religion provided as follows :

“ In GPE , religion and religious institutions ( dini qurumlar ) shall be separate from the ORG .

The ORG shall not delegate any of its functions to religious institutions and shall not interfere with their activities .

All religions and religious institutions shall be equal before the law . ...

Religious institutions shall not participate in the activities of political parties and shall not provide them with financial assistance .

In the event of the election or appointment of clergymen ( din xadimləri ) to positions in the institutions of government , their activities as clergymen ( onların din xadimi kimi fəaliyyəti ) shall be suspended for the period during which they occupy the relevant position . ”

The case of PERSON v. GPE ( no . CARDINAL/CARDINAL , declared inadmissible by ORG in a ORG decision of DATE ) contained the following facts relevant to the present case regarding the eligibility requirements laid down by LAW . The applicant in that case was a candidate in the elections of DATE for the single - seat PERSON Electoral Constituency No . DATE . CARDINAL of his opponents , PERSON , was the Head of ORG ( “ the ORG ” ) . Heads of regional executive authorities were appointed and removed from their posts by the President of the Republic . Following his formal registration as a candidate , PERSON was temporarily relieved of his official duties , without pay , until DATE , pursuant to an ORG decision of DATE signed by PERSON himself . This decision was duly notified to the electoral authorities and ORG . G.A. also submitted an undertaking to terminate any activities incompatible with the office of member of parliament , if elected as such . The applicant challenged the lawfulness of the election process in the constituency before the domestic authorities , arguing that PERSON should have been definitively removed from his post by a presidential order prior to his formal registration as a candidate . The electoral authorities and courts dismissed the applicant 's claims , noting that PERSON had been temporarily relieved of his duties in full compliance with LAW and that , therefore , he was not in a position to unduly influence the electoral process in his capacity as a high - ranking civil servant . For these reasons , PERSON was allowed to stand as a candidate . Subsequently , PERSON won the election in the constituency . On DATE G.A. was definitively removed from his post by a presidential order .


No violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of murder .

On DATE ORG ( Sąd Rejonowy ) ordered his detention on remand .

The applicant ’s detention was subsequently extended on DATE , DATE and on DATE .

On DATE the bill of indictment was lodged .

On DATE ORG ( PERSON ) extended the applicant ’s detention until DATE . The court relied on a strong suspicion that he had committed the offence in question , which was supported by evidence . It attached importance to the grave nature of the offence and the likelihood of a severe sentence of imprisonment being imposed on him . In addition , keeping him in custody was necessary to ensure the proper conduct of the proceedings . Lastly , the court stressed that there were CARDINAL coaccused and CARDINAL witnesses involved in the proceedings .

On DATE the trial court held the first hearing . It subsequently held CARDINAL hearings in the case .

On DATE ORG extended the applicant ’s detention until DATE . The court repeated the reasons given previously . Upon an appeal by the applicant , ORG ( Sąd Apelacyjny ) upheld that decision on DATE .

On CARDINAL DATE ORG again extended the applicant ’s detention . The court stressed that he was likely to receive a particularly severe sentence .

On CARDINAL DATE the ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment . On DATE the applicant ’s lawyer lodged an appeal . He was kept in detention pending appeal for the CARDINAL subsequent months .

On DATE ORG upheld the first - instance judgment .

On DATE the applicant ’s lawyer filed a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) .

On DATE the applicant informed the Registry that his cassation appeal had been rejected by ORG .

At the time of lodging his application with the ORG the applicant was detained in the course of criminal proceedings against him .

On DATE ORG received a letter from the applicant dated DATE . The envelope bears a stamp “ censored on ... ” ( ocenzurowano dn .... ) and an illegible signature .

On DATE ORG received the application form from the applicant ( dated DATE ) . It was delivered in an envelope bearing a stamp “ censored on ... ” ( ocenzurowano dn .... ) . It also bears an illegible signature and a handwritten date , 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 “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

NORP The relevant domestic law concerning the means of monitoring the correspondence of persons involved in criminal proceedings applicable at the material time is set out in the ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

On DATE CARDINAL inspectors of ORG ( PERSON ) inspected the LOC of the applicant under ORG ( PERSON ) . The inspectors found that the applicant ’s house was being painted by CARDINAL persons who did not have either GPE nationality or a nationality that allowed them to be equated with GPE nationals for employment purposes and that they did not hold a work permit ( tewerkstellingsvergunning ) . During the inspection , the CARDINAL inspectors entered the applicant ’s garage , which was not connected to his house , in the applicant ’s absence and without his permission , where they questioned the CARDINAL foreign persons . The applicant alleges that no interpreter was present .

On DATE the applicant and his wife were questioned by CARDINAL inspectors of ORG regarding the alleged infringement of ORG . During the interview , one of the inspectors stated “ whenever there was a foreign smell , I would always ask for [ a work permit ] ” . The applicant expressed his discontent with this behaviour of the inspector but no note was taken of the incident in the report of the interview .

On DATE the Deputy Minister ( staatssecretaris ) of ORG ( PERSON en GPE ) sent copies of the inspectors’ reports to the applicant .

In a letter dated CARDINAL DATE , the Deputy Minister informed the applicant of the intention to fine him MONEY ( ORG ) in accordance with section CARDINALa in conjunction with LAW .

NORP In his written comments ( zienswijze ) the applicant disputed the amount of the fine and he complained that the inspectors had entered his garage without his permission . By decision of CARDINAL DATE the Minister of ORG and Employment rejected the applicant ’s arguments and imposed the fine of CARDINAL ORG .

The applicant lodged an objection ( bezwaar ) against this decision , explaining in more detail the arguments stated in his written comments , pleading mitigating circumstances and arguing further that he disagreed with the different interpretations of the word “ employer ” in the GPE legal system . Furthermore , he complained about the behaviour of CARDINAL of the inspectors of ORG during the interview of DATE .

During a hearing by telephone ( telefonische hoorzitting ) on CARDINAL DATE the applicant was given the chance further to elaborate on these statements .

On DATE the Minister dismissed the applicant ’s objection , stating the legal grounds for the decision and pointing out to the applicant that , in relation to the behaviour of the inspectors during the interview , he could file a formal complaint against these persons with ORG . The applicant ’s complaints regarding the entering of the garage were also rejected as it had appeared that the garage was not in direct connection with his house , which obviated the need for permission to enter it .

The applicant appealed against the decision to ORG ( rechtbank ) on DATE restating the arguments set out in his objection , including the complaint that the inspectors of ORG had entered his garage without his permission .

On DATE ORG held that because the applicant ’s garage was not directly connected to his house , the inspectors had not needed permission to enter it . ORG rejected the applicant ’s other complaints but decided to reduce the fine to the amount of ORG CARDINAL,CARDINAL because the proceedings before the court had exceeded a reasonable time .

On DATE ORG of ORG ( GPE bestuursrechtspraak PERSON , “ ORG ” ) dismissed the applicant ’s appeal holding , inter alia , that it had not been properly argued as regards the entering of his garage by the inspectors .

The relevant sections of ORG ) Act provide as follows :

In this LAW and delegated legislation based on it , [ the following definitions shall apply ] :

a. The Minister : the Minister of ORG and Employment ;

b. employer :

CARDINAL NORP the person who , in the exercise of an office , profession or business , has someone else perform work ( degene die in de uitoefening van een ambt , beroep of bedrijf een ander TIME verrichten ) ; ...

It is forbidden for an employer to employ a foreign national in the GPE without a work permit .

Any failures to comply with sections CARDINAL(CARDINAL ) ... shall be deemed administrative offences ( overtredingen ) . ...

A civil servant appointed by the Minister [ i.e. the Minister of ORG and Employment ] for that purpose and coming under the Minister ’s authority shall , in the Minister ’s name , impose an administrative fine on any person to whom the obligations deriving from this Act apply , in so far as the failure to comply with such obligations is deemed an administrative offence .

NORP The administrative offences defined for the purpose of this LAW ( [ d]e terzake van deze wet gestelde overtredingen ) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed ( ten opzichte LOC , met of QUANTITY aanzien van wie een overtreding is begaan ) . ”

The Foreign Nationals ( Employment ) Act Fining Policy Rules , first published in ORG , no . CARDINAL and renewed DATE since then ( as relevant to the case before the ORG , Official Gazette DATE , no . CARDINAL ) , set out a tariff to be applied in imposing administrative fines . A legal body which employs a foreign national without a work permit will be fined ORG CARDINAL . If the employer is a natural person not a legal entity , the fines are reduced by CARDINAL .