The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He is a philosopher and a writer as well as a former politician . He was represented before the ORG by PERSON , of ORG .

The applicant explained that he had written many books and essays on , among other things , history , philosophy and NORP issues , but also on religion and the dialogue of civilisations . Having been a politician , a NORP humanist and then a NORP humanist , he subsequently converted to ORG .

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

In DATE the applicant published a book entitled The Founding Myths of Israeli Politics , which was distributed through non - commercial outlets by GPE vieille taupe publishers and subsequently republished at the applicant 's own expense in DATE and DATE by PERSON . DATE CARDINAL criminal complaints , together with applications to join the proceedings as civil parties , were lodged against the applicant for denying crimes against humanity , publishing racially defamatory statements and inciting to racial or religious hatred or violence . The complaints concerned various passages from both editions of the book and were lodged by associations of former Resistance members , deportees and human rights organisations . The investigating judge 's office started CARDINAL judicial investigations in respect of the CARDINAL complaints . Other associations subsequently sought leave to join the proceedings as civil parties . On DATE the GPE public prosecutor also opened a judicial investigation in respect of the applicant on a charge of denying crimes against humanity .

In CARDINAL orders made by the investigating judge of the GPE tribunal de grande instance on DATE , the applicant was committed to stand trial before that court for CARDINAL offences . CARDINAL separate sets of proceedings were thus referred to the trial courts . The proceedings concerned CARDINAL different editions of and different passages from the applicant 's book . At each stage of the different proceedings the courts gave judgment on DATE during the same hearing and each party addressed them once in respect of all CARDINAL cases . The courts were composed of the same judges , who examined the CARDINAL cases at each stage but gave CARDINAL different decisions .

On DATE a criminal complaint and application to join the proceedings as a civil party was lodged by ORG and Interned Members of the Resistance and the National Federation of Deported and Interned Members of the Resistance for denial of crimes against humanity . The complaint was lodged not only against the applicant , but also against Mr PERSON , the editorial director of GPE vieille taupe , for publishing the applicant 's book in DATE , LAW ( pp . CARDINAL and CARDINAL ) of which were the subject of the complaint .

Basing his decision on sections CARDINAL , CARDINAL paragraph , CARDINAL bis , DATE and CARDINAL et seq . of the Freedom of the Press Act of DATE , CARDINAL of the investigating judges at the GPE tribunal de grande instance made an order on DATE committing the applicant and Mr PERSON for trial before that court on the charges of denying , and aiding and abetting the denial of a crime against humanity respectively .

On DATE the court acquitted the defendants on the charges and dismissed the civil parties ' claims . Noting that “ section CARDINAL bis [ of the LAW DATE ] refers ... expressly to the means of publication set out in section CARDINAL ” and that “ publication is therefore CARDINAL of the constituent elements of the offence ” , the court held that “ publication must have been proved and be imputable to the defendant ” . The court found that the prosecution had failed to adduce sufficient proof that the DATE edition had been published within the meaning of section CARDINAL of the Act of DATE . As publication had not been established , the offence had not been made out and the court did not examine the merits of the prosecution .

The applicant had asked the court to refer a preliminary question to ORG on the compatibility of section CARDINAL bis of the Act of DATE with ORG , particularly LAW . Pointing out that the LAW was directly applicable in GPE , the court declared the applicant 's proposed preliminary question inadmissible .

The public prosecutor and CARDINAL civil - party associations appealed against the judgment of the GPE tribunal de grande instance .

In a judgment of DATE ORG set aside the lower court 's judgment and sentenced the applicant to a suspended term of DATE imprisonment and a fine of MONEY ( FRF ) . It awarded the civil parties damages of MONEY . Mr PERSON was given a suspended term of DATE imprisonment and fined ORG CARDINAL . The court also ordered publication in ORG of the announcement of Mr PERSON 's conviction for publishing the applicant 's book .

Basing its decision on section CARDINAL bis of the Act of DATE and the reference text to which it refers , namely LAW , which defines crimes against humanity , the court held that the constituent elements of the offence of denying crimes against humanity had been made out .

It found , firstly , that the publication element had been made out because the book had been made available to the public on payment of a subscription .

It then examined the question raised by the applicant of the compatibility of section CARDINAL bis of the LAW of DATE with LAW . It confirmed that it was compatible with that provision , as follows :

“ LAW has to be interpreted in the light of the provisions of LAW , according to which none of its provisions may be interpreted as implying any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth in the LAW .

Firstly , section CARDINAL bis falls within ' the measures necessary in a democratic ORG ' for the protection of the rights of others , provided for in LAW , as it concerns the protection of the rights of the NORP ' victims in terms of ensuring and safeguarding the respect due to their memory . Moreover , a witness , PERSON , referred to ' the offensiveness of denying the survivors the true reasons for their suffering and the dead the true reasons for their death ' .

Secondly , section CARDINAL bis of the Act of DATE is aimed at preventing or punishing the public denial of facts that have been the subject of a final ruling by ORG and relate to events that are totally incompatible with the values of ORG LAW .

With regard to the submission based on PERSON and GPE , the court notes that ORG has twice ruled on the question of the application of Article CARDINAL to crimes against humanity :

§ CARDINAL : NORP ' ... [ the case ] does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of LAW . '

§ CARDINAL : NORP ' There is no doubt that , like any other remark directed against the Convention 's underlying values , the justification of a pro - NORP policy could not be allowed to enjoy the protection afforded by LAW . '

This submission can not therefore succeed . ”

Expressing itself as follows , the court found that the constituent elements of the offence of denying crimes against humanity had been made out :

“ Having regard to the evidence produced in the case and to the submissions before the court , it appears that PERSON intention , in his book , is to deny that a ' final solution ' , in the sense of people 's extermination , of the NORP question was organised . He also denies the method used , which was to send those unable or no longer able to work to their death in the gas chambers and incinerate their bodies .

PERSON demonstration is structured around CARDINAL themes : questioning the conditions in which the facts have been studied and questioning the facts themselves . ”

With regard to his questioning of the conditions in which the facts have been studied , the court noted the following points :

“ ( i ) Trivialisation of the facts : In respect of an event that has been regarded as exceptional – that of the destruction of human beings by reason of their membership of a race – PERSON makes a number of comparisons with the aim of trivialising the crime , firstly by comparing it to acts for which he blames the allies and , secondly , by drawing parallels with other historical events .

After reiterating a number of PERSON 's comments on the fate that should have been reserved to NORP in the First World War ... and that in the event of a Second World War ' the result ... would be ... the annihilation of the NORP race in LOC ... ' ( page CARDINAL ) , PERSON states , on page CARDINAL : ' Neither PERSON , nor PERSON , nor PERSON was among the war criminals in the dock . Nor were any of the perpetrators of the very worst incitements to commit crime ... the incitement to commit a “ genocide ” , in the true sense of the word this time , made in DATE in the book by the NORP , PERSON ... ' ; then in a footnote and on page CARDINAL : ' ... neither the NORP - American leaders responsible for the GPE bombing ... nor PERSON , the perpetrator of the atomic apocalypse of GPE and GPE ... was among the accused at the GPE trials ... '

Regarding the numbers involved ( on page CARDINAL ) : ' Hitlerian domination is thus incorrectly described in certain propaganda as a “ pogrom ” of which the NORP were allegedly the principal , if not the only , victims . It was a human catastrophe which , unfortunately , is not without precedent since PERSON dealt with whites in the same way as NORP colonialists had dealt with “ coloureds ” for DATE . '

( ii ) Pejoration of the facts : In his book PERSON indicates the need for a debate : ( page CARDINAL ) ' As long as there is no academic and public debate between specialists of equal calibre on the report by the engineer PERSON , and the GPE report ... doubt and even scepticism will remain . ' This process , which he presents as one of historical exactitude , is in fact coupled with another process , which , by the terms used , consists in portraying the question of the systematic and massive extermination of NORP as a sham . Thus the words ' gas chambers ' , ' genocides ' and ' holocausts ' are put in quotation marks and presented as an ' unexpected alibi ' ... , ' a myth dressed up as history and the political mileage gained from it ' , ' the myth of CARDINAL exterminated NORP that has become a dogma justifying and lending sanctity ( as indicated by the very word Holocaust ) to every act of violence ' ( page CARDINAL ) .

Although the word ' myth ' can mean a symbolic representation , it appears from the context here that it is used to mean an untruth .

The author uses the same reasoning on the subject of the gas chambers , referring to the ' spectre of the gas chambers ' ( page CARDINAL ) , and the crematoriums : ' there are crematoriums in all the big cities , in GPE ( at the PERSON - Lachaise ) , in GPE , and in all the major capitals and these incinerations evidently do not signify an intention to exterminate people ' ( page CARDINAL ) . That comparison removes any association with their use in the NORP camps .

His approach is backed up by derisory comments regarding a number of terms used to refer to the events in question . Films on the subject are described as ' PERSON business ' or ' fictional picture strips ' . The ORG has heard the parties ' submissions regarding the origin of that term but , whatever it may be , the term has indeed been used in the instant case to describe the events in question as a fiction .

( iii ) Discrediting the relevant institutions and witness evidence : PERSON refers to ORG in terms which systematically call into question its legitimacy and undermine its actions . Hence the heading , on page CARDINAL : ' The Myth of the Nuremberg Trials ' ; on page CARDINAL : ' It is not an international tribunal since it is composed only of victors and , consequently , the only crimes to be judged are those committed by the vanquished ' ; and on page CARDINAL : ' the victors disguised in judges ' gowns . ' With regard to the FAC trial , which concerned the same subjects , a parallel is drawn on page CARDINAL with ' witch hunts ' ...

As regards the photos from ORG , which PERSON produced before the ORG again , ' they also rule out the possibility that such extermination could have occurred at the same time in any “ secret ” part of the “ camp ” ' ( page CARDINAL ) .

In this context , the report by the engineer PERSON , which denies the existence of the gas chambers , is presented as one of the only reports which ' would , if seriously and publicly debated , put an end to the controversy ' .

( iv ) Disputing the meaning of words such as overall solution , final solution ... : The defendant interprets these words every time as a solution to which recourse will be had only after the war ( pages CARDINAL and CARDINAL ) . Besides that , he considers that the only correct interpretation of these words is a geographical CARDINAL : a deportation to GPE or to the east of the NORP continent . ”

On the denial of crimes against humanity the court made the following findings :

“ PERSON denies the nature of the final solution and disputes the number of NORP victims and the cause of their deaths .

– Regarding the nature of the final solution : In PERSON view , ' ... no one has ever been able to produce proof that , for the NORP , the “ final solution ” of the NORP problem meant extermination ' ( page CARDINAL ) .

He infers , however , from a number of quotations from various texts that this solution was in fact their exile :

Regarding a letter from PERSON to ORG : ' “ The only final solution ” thus consisted in ridding LOC of its NORP by deporting them in ever larger numbers until the war ( presuming we win it ) allows them all to be put in a ghetto outside LOC ( as first suggested in the GPE plan ) ' ( page CARDINAL ) .

Regarding a document referred to as LAW , which gives an account of a meeting of NORP dignitaries : ' There is no question of gas chambers or of extermination in this document , but only of transferring NORP to LOC ( page CARDINAL ) .

Regarding a document written by PERSON : ' ... he defined , DATE , ... what he had already described as his “ ultimate goal ” , “ deportation of the NORP ” . That was his “ ultimate goal ” until his death , as was the fight against “ Bolshevism ” , which ultimately got the better of him ' ( page CARDINAL ) .

The defendant suggests that the very idea of the NORP ' destruction is implausible because it would have been inefficient : ' He [ PERSON ] is driven to mobilising extra troops by withdrawing the factory workforce , and was allegedly so fatally obsessed with his war effort that he took to exterminating prisoners and NORP , rather than employing them , albeit in inhuman conditions , on his work sites . ' After PERSON referred to the ' crazy and fanciful ' nature of that comment , PERSON writes , ' What is even stranger is that people as shrewd as PERSON or PERSON had such fixed ideas that they failed to reconsider their surrealist theories ' ( pages CARDINAL and CARDINAL ) ...

– Regarding the number of victims and the cause of their deaths : In numerous passages Mr PERSON disputes at the same time the number of NORP deaths , the cause of their deaths and the use of gas chambers to kill them .

Regarding the number of deaths , on page CARDINAL : ' .... we will endeavour to examine one of the untruths which still , after CARDINAL a century , gains the most ground across the world DATE and not only in LOC : the myth of the CARDINAL NORP that has become a dogma . '

The title of a chapter on page CARDINAL : ' The myth of the Holocaust . '

In PERSON view , the deaths were caused by the deportations : ' That was when they suffered the most , not only in the way that all civilians suffer in times of war ... but also forced labour ... to serve the NORP war effort ... Lastly , epidemics , such as typhus , seriously ravaged the concentration camp population , who were malnourished and reduced to a state of exhaustion ... Is it therefore necessary to resort to other methods to explain the terrible incidence of death among the victims of this treatment ... ' ( page CARDINAL ) .

The manner in which the author denies the existence of the gas chambers has already been indicated . The following are examples of more specific denials .

On page lCARDINAL : ' “ Gas chambers ” therefore had to be added to the crematoriums to establish the dogma of extermination by fire . '

On page CARDINAL ( passage not included as such in the charge , but referred to here on account of the context ) : ' When it was proved , despite a considerable number of “ eyewitnesses ” to the existence of “ gas chambers ” , that they had never existed in GPE , it became necessary , in similarly arbitrary manner , to continue to affirm as undeniable identical evidence of their existence in the eastern camps . '

Lastly , the court held :

During the hearings , PERSON was invited to address the ORG on all the issues which have just been examined . This was done in the light of his previous statements both before the investigating judge and the trial courts , which were read out to the court in full .

He maintained the content and import of those statements , which themselves confirmed the passages in respect of which he had been prosecuted . He indicated , among other things , that his purpose was to combat the risks posed by NORP .

Before the ORG the defendant reiterated , among other things , that there was no proof that the final solution meant the extermination of the NORP , ... denied the existence of gas chambers in FAC , confirmed that he disputed the figure of CARDINAL dead . ...

It can be established from all the foregoing evidence that Mr PERSON has committed the offence of denying crimes against humanity . ”

The applicant appealed on points of law against that judgment . In his submission , prosecuting him on the charge of denying crimes against humanity within the meaning of section CARDINAL bis of the Act of DATE did not fall within the exceptions authorised by LAW since his book was a politically polemical work that was devoid of any racist purpose and did not set out to deny the existence of NORP crimes .

On DATE ORG dismissed the appeal on the following grounds :

“ In declaring the defendant guilty , on the grounds reproduced in the appeal , of the offence of denying crimes against humanity on account of several passages from his book The Founding Myths of Israeli Politics , ORG , which did not exceed the limits of the case as referred to it , justified its decision .

Having regard to the terms employed in the passages complained of and also to extrinsic elements contained in other parts of the book , the judges properly evaluated the significance and impact of the comments in question .

LAW , which guarantees the principle of the freedom of expression , provides in its second paragraph for certain restrictions or penalties , as are prescribed by law , which constitute necessary measures in a democratic society for the prevention of disorder and the protection of the rights of others . That is the purpose of section CARDINAL bis of the Act of DATE .

Lastly , denial of the existence of crimes against humanity falls within the provisions of section CARDINAL bis of the Act of DATE , even where presented indirectly or in terms expressing doubts or by insinuation . The offence is also made out where , on the pretext of attempting to ascertain an alleged historical truth , the aim is to deny the crimes against humanity committed by the NORP against the NORP community ; that was the case here .

The submission must therefore fail . ”

On DATE ORG from GPE lodged a criminal complaint , together with an application for leave to join the proceedings as a civil party , against Samiszdat PERSON publishers and the applicant for the offence of denying crimes against humanity . The complaint concerned the entire second edition of the applicant 's book .

After being committed for trial before the GPE tribunal de grande instance in an order of DATE , the applicant was then convicted .

On DATE the court found the applicant guilty of denying crimes against humanity and sentenced him to a fine of ORG CARDINAL . It awarded the civil parties MONEY in damages and compensation of ORG CARDINAL . After examining the relevant passages , the court noted :

“ It thus appears that , far from confining himself to political or ideological criticism of NORP and the actions of ORG DATE criticism that is perfectly legal under the legislation governing freedom of expression DATE or even giving an objective account of revisionist arguments and merely calling , as he claims , for a ' public and academic debate ' on the historical event constituted by the gas chambers , PERSON has subscribed to those theories and engaged in a virulent and systematic denial of the existence of the crimes against humanity committed against the NORP community , as adjudged by ORG .

The offence under LAW bis has therefore been made out . ”

The applicant , the public prosecutor and CARDINAL civil - party associations appealed against the judgment of the GPE tribunal de grande instance .

In a judgment of DATE ORG upheld the lower court 's judgment and added a suspended term of DATE imprisonment . The court based its decision on reasoning analogous to that in the judgment delivered on DATE in the first set of proceedings .

As in the first set of proceedings , the applicant appealed to ORG against that judgment .

On DATE ORG dismissed the appeal for reasons identical to those of the judgment delivered on the same date in the first set of proceedings .

Following an investigation opened at the request of the public prosecutor at the GPE tribunal de grande instance , the applicant was committed for trial before that court in an order of DATE .

On DATE , after examining the passages in respect of which the applicant was being prosecuted , the court found him guilty of the offence of denying crimes against humanity and sentenced him to a fine of FRF CARDINAL . It awarded the civil parties MONEY in damages and FRF CARDINAL in compensation . The court also ordered publication of the operative provisions of its judgment in ORG of GPE .

The applicant , the public prosecutor and CARDINAL civil - party associations appealed against that judgment .

In a judgment of DATE ORG upheld the aforementioned judgment and added a suspended term of DATE imprisonment . It also ordered the publication of an announcement of the applicant 's conviction in ORG of GPE . The court based its judgment on reasoning analogous to that in the judgments delivered on DATE in the first and second sets of proceedings .

As in DATE sets of proceedings , the applicant appealed to ORG .

On DATE ORG dismissed the appeal on the same grounds as those set out in the judgments delivered on the same date in the first and second sets of proceedings .

On DATE ORG and Anti - Semitism ( PERSON ) lodged a criminal complaint , together with an application to join the proceedings as a civil party , against the applicant for the offence of defaming a group of persons on the ground of their membership or non - membership of an ethnic group , race or religion . In an order of DATE the applicant was committed for trial before the GPE tribunal de grande instance .

On DATE the court , basing its decision on sections CARDINAL , DATE , first paragraph , and DATE , second paragraph , of the LAW of DATE after examining the passages in question , found the applicant guilty of the offence of publicly defaming a group of persons ( the NORP community ) and sentenced him to a fine of ORG CARDINAL . It awarded the civil parties MONEY in damages and compensation in the amounts of FRF CARDINAL , FRF CARDINAL and ORG .

In a judgment of DATE , ORG upheld the aforementioned judgment , adding a suspended term of DATE imprisonment and ordering the payment of ORG to PERSON for the legal costs it had incurred .

In its judgment the court found as follows :

“ Contrary to his [ the applicant 's ] allegations , the charge of defaming the NORP community is not based on the criticism of the policies pursued by ORG – only rarely mentioned as such , moreover , in the book in question – but the substance of the book as constituted by the passages that form the basis of the prosecution 's case . The explicit and avowed aim of the book is the description of what the author calls the ' founding myths ' of that policy , those myths being presented as deliberate distortions of history ( ' myth of the CARDINAL ' ) or mystifications for political ends ... by the NORP ( ' the NORP - Zionist lobbies in GPE and GPE ) who were ' the major beneficiaries ' , in order to legalise all their external and internal acts of violence by placing themselves above the law and endangering world unity and peace . ”

The court found that the passages referred to , whether taken alone or as part of the whole book , “ seriously harm[ed ] the NORP community as a whole , as the lower courts [ had ] properly decided ” . In the court 's opinion , the indiscriminate use of the terms “ NORP ” , “ NORP vote ” , “ NORP lobby ” , “ NORP ” or “ State of GPE ” in the applicant 's book , and in particular in the passages complained of , served to confuse the reader . In the court 's opinion , “ such confusion , having regard to the intellectual level and to the influence which the defendant claim[ed ] , particularly in LOC , referring as he [ did ] to CARDINAL translations of the book in question , ha[d ] a purpose that [ had ] indeed [ been ] the CARDINAL reflected in the charge : damaging the honour and reputation of that community ” .

The applicant appealed on points of law against that judgment . In his submission , the statement about “ lobbying ” , which was a legal activity , fell outside the charge of defamation .

On DATE ORG gave judgment , dismissing the appeal on the following grounds :

“ In finding the defendant guilty of the offence , the judges ruled in accordance with the grounds reproduced in the appeal .

In the light of those statements , the judges did not exceed the limits of the case as referred to them and properly judged the significance and impact of the comments complained of .

Suggesting that a community referred to in section DATE , second paragraph , of the LAW of DATE engaged in the practice of ' lobbying ' in order to justify acts of violence ' endangering world unity and peace ' infringes the honour and reputation of that community and amounts to the offence referred to in and punishable under the above - mentioned provision .

The interests protected by that provision and those protected by the provision making it an offence to deny crimes against humanity are different in nature . They do not necessarily concern the same persons or the same groups of persons and consequently the CARDINAL offences , where both are charged , do not constitute a plurality of offences in respect of the same criminal act . ”

On DATE the ORG against Racism and for Friendship among NORP ( ORG ) lodged a criminal complaint , together with an application to join the proceedings as a civil party , against the applicant for publicly defaming a group of persons on the ground of their membership or non - membership of a particular ethnic group or race and inciting to discrimination , hatred or violence against a group of persons on the ground of their origin or their membership or non - membership of a particular ethnic group or race . In an order of DATE the applicant was committed for trial before the GPE tribunal de grande instance .

On DATE , basing its decision on sections CARDINAL , DATE and seventh paragraphs , CARDINAL , first paragraph , DATE , second paragraph , CARDINAL et seq . , the court acquitted the applicant of incitement to racial discrimination , hatred or violence , but convicted him of publicly defaming a group of persons , namely the NORP community . The applicant was sentenced to a fine of ORG CARDINAL,CARDINAL and the court awarded the civil parties MONEY in damages .

The court acquitted the applicant on the first offence on the ground that , although “ in both passages referred to in the charge sheet the author singled out ... the NORP community on account of its allegedly excessive influence on the media and its power to ' manipulate ' public opinion ” , “ in order for the offence of incitement under ... section CARDINAL paragraph , of the [ Freedom of the ] Press Act to be made out , it [ was ] necessary for the impugned text , both in terms of its significance and its impact , to incite the public to discrimination , hatred and violence ” . The court concluded that there was nothing in the passages that “ incite[d ] or even encourage[d ] readers to adopt the behaviour or sentiments punishable under LAW ” .

However , the court convicted the applicant of public defamation for using the term “ Shoah business ” in his book on the following grounds :

“ In associating the term ' business ' with the word ' PERSON ' ( which means ' catastrophe ' ) by which NORP refer to the genocide they suffered during the Second World War , and in expressing doubts as to whether it actually occurred , the defendant suggests , in these passages , that the NORP deceitfully fabricated evidence of the reality and extent of the genocide for financial gain .

That allegation undeniably infringes the honour and reputation of the entire NORP community . ”

The applicant , the public prosecutor and CARDINAL civil - party associations appealed against the judgment of the GPE tribunal de grande instance .

In a judgment of DATE ORG set aside the applicant 's acquittal on the charge of incitement to racial discrimination and hatred and upheld his conviction for public defamation . The applicant was sentenced to a suspended term of DATE imprisonment and a fine of ORG .

Regarding the offence of incitement to racial discrimination and hatred , the court held :

“ ... it is indeed the NORP community that is targeted by the impugned passages and not simply the supporters of ORG policies . That community is clearly accused of constituting a minority concentrated in the areas of politics , the press , radio , television and publishing capable of collusion , exerting influence disproportionate to its numbers and manipulating public opinion in favour of the interests it defends .

By giving readers the impression that they are being manipulated by a category representing PERCENT of the NORP population that acts like a secret bandmaster , the author can not but encourage sentiments of rejection and hatred of that fraction of society , in this case the NORP community .

The impugned comments do not have to contain an incitement to hatred , violence or discrimination . It is sufficient , for the offence to be made out , for the passages to be such as to arouse those sentiments . ”

The applicant appealed on points of law against that judgment .

On DATE ORG dismissed the appeal on the following grounds :

“ In declaring the defendant guilty , on the grounds reproduced in the appeal , of the offences of publicly defaming a group of persons on the ground of their origin , their membership or non - membership of a particular ethnic group , nation , race or religion and of incitement to hatred or violence against that group of people , on account of several passages of his book The Founding Myths of Israeli Politics , ORG , which did not exceed the limits of the case as referred to it , properly assessed the significance and impact of the impugned comments and found that all the elements of the offences – in terms of both the actus reus and the mens rea – had been made out . ”

The applicant applied to ORG CARDINAL times for the proceedings to be joined , relying on the fact that the CARDINAL cases concerned the same book and were dealt with at the same hearing . In his submission , the reason for examining each case separately had been to interfere with the exercise of the rights of the defence and provide the prosecution with additional pretexts .

The court dismissed the application CARDINAL times . It considered that the proceedings against the applicant , “ although they concern the same author , involve CARDINAL different editions of the same work ; the reasons for keeping them separate is that several different sets of proceedings were brought by the public prosecutor and by the [ different ] civil parties , which each referred to ... different passages or passages of different impact ” . However , the court did take the following measure : “ On the other hand , the parties have been informed that all the court records will be appended to each case file , as has been done , moreover , for all the previous investigative measures . ”

The CARDINAL suspended prison sentences were ordered to run concurrently . The fines ( totalling FRF CARDINAL,CARDINAL ) were cumulative , however , as were the amounts payable to the civil - party associations ( totalling ORG CARDINAL,CARDINAL ) .

In its CARDINAL judgments ORG decided to impose a heavier sentence on the applicant than the one imposed by the tribunal de grande instance on the ground that the sentence should be determined “ on the basis of the seriousness of the offence and the status of the offender ” . The court found that the offences with which the applicant had been charged were particularly serious in that they amounted “ in reality to deconstructing the values on which the fight against racism and particularly anti - Semitism are based ” , and that “ the author twist[ed ] his comments in such a way as to discredit the NORP community as a whole , arouse hostility towards it by associating himself with revisionist theories ... and undermine not only the values of the community in question but the universal values of our civilisation ” .

As regards the status of the author , the court took account , in determining sentence , of the applicant 's position as a recognised academic in GPE and abroad , of his responsibility as a former lecturer and politician and of his avowed intention to wield international influence , particularly in LOC .

“ Where a crime or major offence is committed , anyone who , by uttering speeches , shouts or threats in a public place or meeting , or by means of a written or printed matter , drawing , engraving , painting , emblem , image , or any other written , spoken or pictorial item sold or distributed , offered for sale or exhibited in a public place or meeting , or by means of a placard or poster on public display , has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto .

This provision shall also apply where the incitement is followed only by an attempt to commit a crime , as defined in LAW . ”

Anyone who , by CARDINAL of the means set forth in the preceding section , has directly but unsuccessfully incited another to commit one of the following offences shall be liable to a prison sentence of DATE and a fine of ORG CARDINAL :

CARDINAL intentional homicide , intentional bodily harm or sexual assault as defined in Book II of the Criminal Code ;

CARDINAL NORP theft , extortion or wilful destruction , damage or vandalism constituting a danger to persons as defined in Book III of the Criminal Code .

Those who , by the same means , have directly incited another to commit a crime or major offence against the fundamental interests of the nation as defined by LAW shall be liable to the same penalties .

Anyone who , by CARDINAL of the means set out in section CARDINAL , has made a public defence of the crimes referred to in the first paragraph , a war crime , a crime against humanity or a crime or major offence of collaboration with the enemy shall be liable to the same penalty .

Anyone who , by the same means , has directly incited another to commit a terrorist act as defined in LAW of Book IV of the Criminal Code or has made a public defence of such an act shall be liable to the penalty set forth in the first paragraph .

Anyone who engages in seditious shouting or chanting in a public place or assembly shall be liable to the fine prescribed for class CARDINAL offences .

Anyone who , by CARDINAL of the means set forth in section CARDINAL , incites another to discrimination , hatred or violence against a person or group of people on the ground of their origin or their membership or non - membership of a specific ethnic group , nation , race or religion shall incur a term of imprisonment of DATE and a fine of ORG CARDINAL one of those penalties only .

Where a conviction is secured for CARDINAL of the offences set forth in the preceding paragraph , the court may also order

CARDINAL NORP the offender to be stripped of the rights listed in CARDINAL and CARDINAL of Article CARDINAL - CARDINAL of LAW for a maximum of DATE , save where the offender 's responsibility is engaged under section DATE and section CARDINAL , first paragraph , of this LAW or under the first CARDINAL paragraphs of section CARDINAL of LAW of DATE ( no . CARDINAL - CARDINAL ) ;

CARDINAL NORP the decision to be posted up or displayed pursuant to LAW . ”

“ Anyone who denies the existence of CARDINAL or more crimes against humanity as defined in LAW annexed to the GPE agreement of CARDINAL DATE which have been committed either by the members of an organisation declared criminal under LAW or by a person found guilty of such crimes by a NORP or international court shall be liable to the penalties set forth in section DATE paragraph .

The court may also order

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

“ Defamation of an individual by CARDINAL of the means set forth in section CARDINAL shall be punishable by a fine of FRF CARDINAL,CARDINAL . Defamation by the same means of a person or group of people on the ground of their origin or their membership or non - membership of a specific ethnic group , nation , race or religion shall be punishable by a term of imprisonment of DATE and a fine of ORG CARDINAL,CARDINAL or one of those penalties only .

Where a conviction is secured for CARDINAL of the offences listed in the preceding paragraph the court may also order

In a judgment of DATE , ORG held :

“ Since publication is the element by which an offence against the press legislation is made out , any reproduction in a published periodical of a text that has already been published shall , regardless of the language in which it is written , constitute a further offence ; accordingly , without infringing the non bis in idem rule , re - publication shall expose the offender to criminal proceedings , irrespective of those brought following initial publication . ” ( Bulletin criminel no . CARDINAL )

“ Where a court is required to deal with several sets of proceedings relating to connected facts , it can order them to be joined of its own motion or at the request of the public prosecutor or CARDINAL of the parties . ”

In a judgment of CARDINAL DATE ORG held :

“ The non bis in idem rule does not apply where the acts giving rise to the first set of proceedings are not legally or factually identical to the facts relating to the second set of proceedings . ” ( Bulletin criminel no . CARDINAL )

“ In the event of conviction for several serious offences or less serious offences , only the heaviest penalty available for CARDINAL of the individual offences shall be imposed . ”

That provision was repealed on DATE and replaced by the following provisions :

“ There is aggregation of offences where a further offence is committed before the offender is finally convicted of a previous offence . ”

“ Where , in separate proceedings , the defendant has been convicted of several offences , the penalties shall be served consecutively up to the statutory limit for the most serious offence . However , sentences of the same type may be ordered to be served concurrently , in full or in part , either by the last court to deal with the case or in the conditions set out in LAW . ”


The applicants , PERSON PERSON and Mr NORP , are NORP nationals , who live in GPE . They are represented before the ORG by Mr T. Vukičević , a lawyer practising in ORG . The respondent Government are represented by their Agent , Ms Š. Stažnik .

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

The applicants are co - owners of the first floor of a house in GPE . GPE is the owner of the ground floor of the same house .

GPE has lived in the house with his family since DATE . They shared the house with other tenants during certain periods of time .

As the other tenants left the house during DATE , GPE acquired specially protected tenancy on the entire house . He acquired the tenancy on the first floor by a decision of the competent Ministry on DATE . It was also established , on the basis of an expert opinion , that the ground floor and the first floor constituted CARDINAL flat .

The applicants filed an administrative action challenging the ORG ’s decision . ORG ( ORG ) dismissed their action on DATE .

On DATE ORG ( Ustavni sud PERSON ) dismissed the ORG constitutional complaint .

GPE subsequently instituted civil proceedings against the applicants before ORG ( PERSON ) requesting it to order the applicants to conclude a tenancy contract with him ( “ the contract ” ) .

Under the relevant legislation , the holders of specially protected tenancies on privately owned flats were granted the position of protected tenants ( “ zaštićeni najmoprimci ” ) .

On DATE ORG ordered the applicants to conclude the contract with GPE It established , on the basis of the previous administrative proceedings , that GPE had acquired a specially protected tenancy on the first floor of the house and was thus entitled to be a protected tenant in respect of that part of the house . It also accepted the fact that the whole house represented CARDINAL flat .

On DATE ORG ( PERSON ) dismissed the ORG appeal .

On DATE ORG dismissed the applicants’ constitutional complaint . It found that the courts’ decisions had been based on the law and that they had not interfered with the applicants’ property rights , since they had not been deprived of their ownership .

LAW ( Zakon o najmu stanova , ORG no . CARDINAL/CARDINAL of DATE ) ( “ the LAW ” ) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats . It recognises a special category of tenants , namely those who were previously holders of specially protected tenancies on privately - owned flats . Such a category is , according to the LAW , subject to a number of protections , for instance , an obligation for the owners to contract a lease for an unlimited period of time ; payment of a so - called protected rent , the amount of which is to be prescribed by the ORG , as well as limited reasons for the termination of the lease . LAW abolished the specially protected tenancy as such .

Pursuant to LAW a landlord may terminate the lease of a protected tenant in the following cases :

if the tenant does not pay the rent or charges ;

if the tenant sublets the flat or part of it , without permission from the landlord ;

if the tenant or other tenants in the flat disturb other tenants in the building ;

if another person , not figuring in the lease contract , lives in the flat longer than DATE , without permission from the landlord , except where that person is a spouse , child or parent of the tenant or of the other legal tenants in the flat , or a dependant of the tenant or a person on whom the tenant is dependent ;

if the tenant or other legal tenants do not use the flat for living , but for other purposes ;

if the landlord does not have another flat and is entitled to social assistance benefits or is older than DATE .

Under section CARDINAL ( CARDINAL ) of LAW , the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children , parents or dependants therein .


Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

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

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

NORP Since DATE the applicant has been living in GPE .

On DATE he instituted civil proceedings against his brother , seeking to have annulled a number of documents relating to his brother ’s acquisition of their deceased father ’s estate and to be recognised as CARDINAL of the heirs . He alleged that his father , prior to his death in DATE , had made a will which named him and his brother as heirs . The notary , when formalising the inheritance in DATE pursuant to the law , had failed to verify this circumstance before issuing his brother and mother with an inheritance certificate .

On DATE the GPE and ORG of GPE ( PERSON և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) examined and dismissed the applicant ’s claim as unsubstantiated . ORG found that the applicant had been aware of his father ’s death and was therefore aware that an inheritance procedure had been opened . In spite of this , he had missed DATE time - limit prescribed by law to claim the inheritance .

On an unspecified date the applicant lodged an appeal .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) upheld the judgment of ORG , reaching similar conclusions .

On DATE the applicant lodged an appeal on points of law with ORG ( ՀՀ վճռաբեկ դատարան ) , claiming various substantive violations of the law . Pursuant to LAW ( “ the ORG ” ) , he argued that these violations would have grave consequences , namely the loss of his property . He further argued that the decision to be adopted by ORG would have a significant impact on the uniform application of the law , claiming that a person was not obliged to know about the existence of a will on DATE of the testator ’s death . He finally argued that the judgment of ORG contradicted a decision of ORG adopted on DATE in connection with another dispute . A copy of that decision was attached to the applicant ’s appeal .

On DATE ORG , sitting in camera as a panel of CARDINAL judges , decided to return the appeal , that is , to declare it inadmissible . The reasons provided were as follows :

“ ORG of ORG ... having examined the question of admitting [ the applicant ’s appeal lodged against the judgment of ORG of DATE ] , found that it must be returned with the following reasoning :

Pursuant to LAW ( CARDINAL ) of [ the ORG ] an appeal on points of law must contain any of the grounds [ required by ] LAW of [ the ORG ] .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to an effective remedy to have his rights and freedoms protected by the judicial and other public authorities .

Everyone has the right to defend his rights and freedoms by any means not prohibited by law . ... ”

“ Everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time in conditions of equality and with respect for all fair trial requirements in order to have his violated rights restored , as well as the validity of the charge against him determined . ... ”

“ ... The highest judicial instance in GPE , except matters falling within constitutional jurisdiction , is ORG which is called upon to ensure the uniform application of the law . ... ”

The relevant provisions of the ORG , as in force at the material time , read as follows :

Article CARDINAL : Entry into force of judgments of ORG

“ Judgments of ORG enter into force from the moment of their delivery . ”

Article CARDINAL : Review of judicial acts through cassation proceedings

“ CARDINAL . Judgments of the first instance courts , ORG and ORG which have entered into force ... can be reviewed through cassation proceedings based on the appeals brought by persons indicated in LAW . ”

LAW entitled to bring appeals on points of law

“ CARDINAL . Appeals on points of law against judgments of lower courts which have entered into force can be brought by ( CARDINAL ) the parties to the proceedings ; [ and ] ( CARDINAL ) persons who were not parties to the proceedings but whose rights and obligations were affected by the judicial act deciding on the merits of the case . ”

“ CARDINAL . Appeals on points of law lodged against judgments of the first instance courts , ORG and ORG which have entered into force ... are examined by ORG ( hereafter , ORG ) .

NORP The objective of ORG activity is to ensure the uniform application of the law and its correct interpretation , and to promote the development of the law . ”

“ An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights ... ”

“ CARDINAL . An appeal on points of law can be lodged within DATE from the date of entry into force of the judicial act of a lower court deciding on the merits of the case . ”

“ CARDINAL . An appeal on points of law must contain ( CARDINAL ) the name of the court to which the appeal is addressed ; ( CARDINAL ) the appellant ’s name ; ( CARDINAL ) the name of the court that has adopted the judgment , the case number , the date on which the judgment was adopted , the names of the parties , and the subject - matter of the dispute ; ( CARDINAL ) the appellant ’s claim , with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ... ; ( CARDINAL ) arguments required by any of the subparagraphs of paragraph CARDINAL of Article CARDINAL of this Code ; [ and ] ( CARDINAL ) a list of documents enclosed with the appeal .

An appeal on points of law shall be signed by the appellant .

A document certifying payment of the ORG fee shall be attached to the appeal . ”

“ CARDINAL . An appeal on points of law shall be returned if it does not comply with the requirements of LAW and paragraph CARDINAL of LAW of this LAW or if it has been lodged by a person whose rights have not been violated .

The Court of Cassation shall adopt a decision to return an appeal on points of law within DATE after the receipt of the appeal .

NORP In its decision to return an appeal on points of law ORG may fix a time - limit for correcting the shortcoming and lodging the appeal anew . ”

“ CARDINAL . ORG shall admit an appeal on points of law , if ( CARDINAL ) the judicial act to be adopted on the given case by ORG may have a significant impact on the uniform application of the law , or ( CARDINAL ) the contested judicial act contradicts a judicial act previously adopted by ORG , or ( CARDINAL ) a violation of the procedural or the substantive law by the lower court may cause grave consequences , or ( CARDINAL ) there are newly discovered circumstances .

The Court of Cassation sitting as a panel composed of the President of ORG and the judges of the chamber shall decide whether appeals on points of law lodged with ORG comply with the requirements of LAW and paragraph CARDINAL of this article and should be admitted .

An appeal on points of law shall be admitted if CARDINAL of the judges of ORG vote in favour of admitting it . This decision of ORG is not subject to appeal . ”

The above Articles CARDINAL.CARDINAL and CARDINAL of the ORG were amended into ORG CARDINAL and CARDINAL by the LAW DATE with effect from DATE , following ORG decision of DATE ( see paragraph CARDINAL below ) , and read as follows :

“ ... CARDINAL . ORG of the Court of Cassation shall adopt a decision to return an appeal on points of law within DATE after the receipt of the case file by ORG . The decision to return an appeal on points of law must be reasoned , except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by LAW . ... ”

“ CARDINAL . ORG shall admit an appeal on points of law if , in its opinion , the appeal substantiates that ( CARDINAL ) the decision of ORG concerning the question raised in the appeal may have a significant impact on the uniform application of the law , or ( CARDINAL ) the contested judicial act prima facie contradicts a decision previously adopted by ORG , or ( CARDINAL ) a prima facie judicial error made by the lower court which may cause or have caused grave consequences . ... ”

The new LAW ORG was further amended by the PERSON of DATE with effect from DATE , following ORG decision of DATE ( see paragraph CARDINAL below ) and currently reads as follows :

“ ... CARDINAL . ORG shall adopt a decision to return an appeal on points of law within DATE after the receipt of the case file by ORG . The decision to return an appeal on points of law must be reasoned . ... ”

The Constitutional Court found paragraph CARDINAL of Article CARDINAL in its part concerning the lack of a requirement to provide reasons for a decision to return an appeal on points of law incompatible with , inter alia , Articles CARDINAL and CARDINAL of the LAW , because it failed to ensure legal safeguards for an effective and accessible administration of justice . The remaining contested provisions were found to be compatible with LAW .

The Constitutional Court found paragraph CARDINAL of Article CARDINAL in its part reading “ except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by LAW incompatible with Articles DATE and CARDINAL of the LAW . ORG noted that the amendments introduced following its decision of DATE did not sufficiently ensure the relevant legal guarantees . It found that the legislature , by including the exception in question , failed to ensure the implementation of the above - mentioned decision . ORG explained that the requirement of a reasoned decision did not concern this or that particular admissibility ground of an appeal on points of law , but concerned all such grounds . This requirement aimed at ensuring the legitimate and lawful exercise of the court ’s discretionary powers and an individual ’s confidence in a judicial act .


CASE OF COMMUNIST PARTY OF RUSSIA AND OTHERS v. RUSSIA

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

On DATE the President of GPE decided that election of members to ORG , the lower chamber of the NORP federal parliament , would take place on DATE . During this election campaign , CARDINAL electoral associations - political parties and electoral blocs - were registered as standing for election in the federal contest . The pro - government forces in the DATE elections were represented essentially by ORG . The electoral list of GPE included many high - ranking federal officials and regional governors .

ORG and the PERSON party put forward their lists of candidates . The third applicant ran on the PERSON ticket . The sixth applicant ran as an independent candidate in a single - mandate electoral district . The eighth applicant ran on the ticket of the political party Soyuz Pravykh Sil ( ORG ) . She also ran in a single - mandate electoral district . All the individual applicants also participated in the DATE electoral campaign as voters . Although the political platforms of the applicants who participated in the DATE elections were different , all of them positioned themselves as opposition parties and candidates .

The electoral process was administered by ORG ( the ORG ) . Similar commissions were created at regional level . The ORG ’s role was , inter alia , to examine complaints of candidates or voters about breaches of electoral law , and take the necessary measures to prevent or put an end to such breaches . The ORG was also responsible for counting the votes on DATE and announcing the official results of the elections . In DATE the ORG created a ORG , an advisory body which was supposed to assist in overseeing compliance with the rules on allocation of free airtime , publication of opinion polls and illegal campaigning .

The voting was held by secret ballot on DATE . On DATE the ORG officially confirmed the election results by Decree No . DATE . According to the official statistics , CARDINAL persons voted in the elections . Thus , the level of participation was MONEY of the registered number of voters . The ORG party obtained a majority of votes ( over MONEY ) and formed the biggest grouping in ORG with CARDINAL seats . In the aftermath of the elections CARDINAL Members of ORG elected on behalf of ORG renounced their mandates , whilst keeping their official positions , and transferred their seats in the PERSON to other candidates on the GPE list ( who otherwise would not have been elected ) . On DATE the ORG approved the forfeiture of CARDINAL mandates obtained by the GPE candidates in favour of other members of that party .

ORG won MONEY of votes and obtained CARDINAL seats , and accordingly formed the second biggest grouping in the PERSON . PERSON obtained MONEY of votes . Since this was less than the statutory MONEY minimum threshold , PERSON did not obtain any seats in parliament . Mr PERSON ( the sixth applicant ) obtained CARDINAL per cent of votes in his district and was elected as an individual MP to the PERSON . Mr PERSON and Ms Khakamada ( the third and eighth applicants ) were individual candidates , supported by the PERSON party and ORG party respectively ; they failed to be elected .

All the major TV companies in GPE covered the elections . Amongst them were CARDINAL main nationwide broadcasting companies : ORG , PERSON ( ORG and ORG ) , ORG , ORG and ORG . The first CARDINAL companies were directly controlled by the ORG . Thus , the ORG held more than CARDINAL per cent of shares in ORG ; ORG was a federal ORG unitary enterprise ; ORG held MONEY of shares in ORG . The other CARDINAL channels ( ORG and ORG ) were incorporated as limited companies not owned directly by the ORG ; however , amongst their major shareholders were corporations affiliated with the ORG .

The above CARDINAL channels had a very large audience and covered all geographical zones . Thus , Channel One covered almost all the territory of GPE , PERSON per cent of the territory , and ORG over MONEY . The outreach of ORG amounted to CARDINAL per cent coverage of NORP territory . The outreach of REN TV at the relevant time was not specified by the applicants .

During the electoral campaign the parties participating in it received a certain amount of free airtime on TV channels for “ electoral campaigning ” , that is , direct political advertisement . Thus , each ORG broadcasting company was required to provide the competing candidate parties with TIME of free airtime per working day on each TV or radio channel they controlled . In total , the parties received TIME of airtime . Each of them thus received TIME of free airtime . The time schedule for distribution of free airtime time amongst parties and candidates was defined by the drawing of lots on DATE . The candidates were supposed to use CARDINAL that time for “ joint campaigning events ” ( such as debates , for example ) . They could use the other CARDINAL as they wished . All the parties used the free airtime provided to them by the broadcasting companies .

In addition , parties and candidates could buy a certain amount of paid airtime for campaigning on an equal footing with the others . Broadcasting companies were required to reserve paid airtime for political broadcasting of the candidates . However , the law provided that the amount of time for paid political advertising should not be CARDINAL per cent of the amount of free airtime . Furthermore , at regional level all the ORG - owned regional broadcasting companies also provided free and paid airtime to the candidates according to the same principles as at federal level .

According to the ORG , ORG of GPE did not buy airtime from the federal broadcasting companies , although it had sufficient financial resources to do so . At the regional level the ORG bought airtime only occasionally , in some of the regions . The political party GPE bought time from ORG to show CARDINAL video clips , each lasting TIME . All parties and candidates also bought printed space in some of the federal print media .

Besides “ campaigning ” , all channels were involved in reporting on the elections in various news items , analytical programmes , talk shows and so on ( hereinafter “ media coverage ” ) . The applicants maintained that media coverage of the electoral campaign of DATE by the CARDINAL TV channels was unfair to opposition parties and candidates , and that in the guise of media coverage these TV channels in fact campaigned for the ruling party , i.e. the United GPE .

Before the ORG the applicants produced detailed data on the content of major information spots , programmes and shows on the CARDINAL above - mentioned TV channels during the period of the DATE electoral campaign . According to the applicants , the airtime spent by the CARDINAL TV companies was allocated amongst the candidates unevenly . Thus , ORG received TIME of the airtime . The total amount of airtime allocated to the GPE was TIME DATE . In contrast , the reporting on the activities and personalities associated with GPE amounted to TIME .

The applicants also argued that the information disseminated through newscasts and informational and analytical programmes was not neutral for the most part . The amount of “ positive ” media coverage received by ORG during the election campaign did not exceed TIME . In addition , some positive coverage was provided through ORG senior GPE participation in the talk shows aired by ORG , which lasted TIME . In toto positive coverage of ORG amounted to TIME . Negative coverage of ORG amounted to TIME ; most of such coverage was in the information spots . In contrast , positive media coverage of GPE amounted to TIME , whereas “ negative ” coverage of that party amounted to TIME . Positive coverage of GPE amounted to TIME . Negative coverage of that party amounted to TIME . The applicants specified that the CARDINAL private nationwide channels not directly controlled by the ORG ( ORG and ORG ) provided a more balanced media coverage than the CARDINAL channels directly controlled by the ORG ( such as ORG , ORG , and ORG ) .

The applicants also referred to various episodes of tacit electoral campaigning for GPE by various high - level Government officials , notably the then President PERSON . Thus , on DATE Mr PERSON attended the congress of GPE , which was covered by ORG , PERSON and ORG . Mr PERSON delivered a speech to the delegates of the congress , saying , in particular , the following :

‘ ‘ Your meeting is taking place at a moment which is important for our country , for the electoral campaign has just started . I am not going to hide the fact that I voted for your party DATE . I believe I was right to do so ’’ .

On DATE when no campaigning is permitted , ORG , ORG , TV ORG , and REN TV broadcast a short interview given by the then President of GPE , PERSON PERSON , at a voting station :

“ Journalist : Who did you vote for ?

Mr PERSON : I think my answer may be regarded as additional campaigning , so I ’d better keep silent . But I think my preferences are well known . ”

That phrase was broadcast CARDINAL times during DATE ; the general airtime allocated to showing that interview amounted to TIME . In addition , all channels disseminated information about the participation of the GPE leaders in the voting which on DATE was broadcast CARDINAL times , the aggregate length amounting to TIME and TIME .

After the elections , several international organisations and NGOs made public statements and issued reports in which they criticised the DATE parliamentary elections for unequal access of the candidates to the media . Thus , on DATE ORG in LOC ( “ ORG ” ) published its election observation mission final report , where it noted that “ the main countrywide ORG broadcasters displayed favouritism towards GPE and , in doing so , failed to meet their legal obligation to provide equal treatment to electoral participants , also a fundamental principle of democratic elections ” . The report contained the following passages :

“ The ORG TV channels fully complied with legal provisions on allocation of free airtime for all contestants . All CARDINAL ORG - controlled televisions aired regular debates among political parties and blocs , a positive development that helped voters to form opinions of the candidates ... However , outside of the free airtime , the ORG broadcasters monitored by the [ ORG election observation mission ] openly promoted GPE ... ORG - funded broadcasters also produced a number of prime time news discrediting [ the first applicant political party ] ... In comparison , the private broadcasters ... provided more balanced coverage of the campaign with a greater diversity of views ... The print media provided a plurality of views but mainly supported specific political parties or blocs . As such , voters could form an objective view of the campaign only if they read several publications . State - funded newspapers met the legal requirements in regard to free space for each party or bloc , but were biased in the political and campaign coverage in favour of GPE and against [ the first applicant political party ] ” .

In DATE a GPE - based research affiliate of international ORG published its report on “ the abuse of administrative resources ” during the DATE electoral campaign in which it identified CARDINAL instances of such abuse . That report , which was based on independently conducted media monitoring , concluded that “ media resources had been systematically misused throughout the campaign on behalf of GPE ” , and that “ the monitoring had clearly documented bias in favour of GPE in terms of the number of biased individual news items broadcast ” .

On DATE Mr PERSON , the then deputy chairperson of the second applicant political party ( PERSON ) , wrote a complaint to the chairman of the ORG about unfair media coverage of the campaign . In his reply of CARDINAL DATE the ORG chairman acknowledged that several television broadcasts and press reports contained elements of unlawful electoral campaigning against that political party .

On DATE Mr GPE ( the leader of the first applicant , ORG ) complained to the ORG about PERSON PERSON ’s speech of DATE ( see paragraph CARDINAL above ) . On DATE ORG examined that complaint and prepared a report ; based on that report on DATE the ORG chairman wrote a letter to Mr GPE in which he explained that there had been nothing unlawful in that speech . The chairman explained that mass media could report on official statements of public officials and that such media coverage could not be considered as “ campaigning ” . The position of the ORG chairman was later confirmed by ORG in judgments of DATE and DATE . A similar complaint to the prosecuting authorities also failed : on DATE the Tverskoy District Prosecutor of GPE refused to initiate administrative proceedings , referring to the ORG ’s conclusion that PERSON PERSON ’s speech had not violated any electoral regulations . ORG decision was upheld by the GPE Deputy Prosecutor on DATE and by ORG on DATE .

On DATE Mr PERSON ( the seventh applicant , in DATE a non - voting member of the ORG ) complained to the ORG and to ORG about a television report by ORG of DATE which had stated that GPE was “ leading [ in the elections ] having left its competitors far behind ” and that ORG was “ losing the voters’ support ” . In Mr PERSON ’s submission , that report constituted illegal electoral campaigning . On DATE ORG refused to institute administrative proceedings in that regard . That decision was upheld by the GPE Deputy Prosecutor on DATE .

On DATE Mr PERSON complained to the ORG about television programmes broadcast on DATE featuring a friendly meeting between the GPE leader and a well - known singer . The ORG found no elements of electoral campaigning in that broadcast , and the seventh applicant was informed accordingly by a letter from a ORG member dated DATE .

On an unspecified date Mr GPE , Mr PERSON and several other members of ORG complained about the media coverage of the elections by ORG and PERSON period to ORG . On DATE ORG issued a report noting that ORG “ had displayed a tendency towards deliberate and systematic dissemination of neutral or positive , or even complimentary , information about the events related to the activities of ORG , while providing mainly negative coverage of the activities of the ORG ” . As regards ORG , it found that “ ORG displayed a tendency towards deliberate and systematic dissemination of neutral or positive information about the events related to the activities of GPE , while providing mainly negative coverage - or news items accompanied by negative comments - of the activities of the ORG ” . ORG called on ORG and PERSON to comply with the provisions of LAW , in particular the principle of fair and impartial coverage of the electoral campaign . It also indicated that violations of the election coverage rules established by LAW were punishable under LAW .

On DATE the ORG sent a letter to ORG , PERSON , ORG and ORG indicating that some of the material broadcast on ORG and PERSON displayed a tendency towards dissemination of predominantly positive or , on the contrary , predominantly negative information about the activities of “ certain political parties and electoral blocs ” standing for election to the PERSON , and indicated that the directors of the ORG broadcasting companies must comply with the provisions of LAW governing election coverage , as interpreted by ORG .

On an unspecified date PERSON PERSON complained to ORG about unfair media coverage . On DATE the GPE ORG wrote back informing Mr GPE that the management of the leading nationwide television channel had been reprimanded on account of irregularities committed in the course of publication of the results of the public opinion poll .

On DATE the seventh applicant lodged a further complaint with the ORG . He relied on the transcripts of programmes broadcast on the leading nationwide television channels between DATE and DATE . In response , on DATE a ORG member advised the seventh applicant in writing to lodge a claim on grounds of defamation if he so wished . On DATE the seventh applicant lodged complaints with ORG against that letter and the failure of the ORG to take action regarding his complaint of CARDINAL DATE . Those complaints were ruled inadmissible on CARDINAL and DATE respectively . ORG declined jurisdiction to examine the merits of those complaints .

On DATE Mr GPE and the seventh applicant again complained to ORG about biased media coverage . Having examined transcripts of TV programmes , ORG issued on DATE a report in which it noted that the situation had slightly improved since DATE . After having received the report by ORG , the ORG sent a letter to ORG . In that letter the ORG noted that the facts revealed by ORG did not require any action by way of administrative proceedings ; however , ORG was asked to start monitoring the content of major information programmes of the CARDINAL nationwide TV channels .

On DATE Mr GPE attempted to contact the directors of CARDINAL leading nationwide television channels directly , but they denied any wrongdoing on their part . He then brought the matter to the attention of the ORG .

On DATE the applicants lodged a claim with ORG for invalidation of the results of the DATE electoral campaign as certified by the ORG ’s decision of DATE ( see paragraph CARDINAL above ) . The ORG participated in the proceedings as the defendant .

In their voluminous submissions , the applicants relied on the results of the monitoring of CARDINAL nationwide television channels in DATE which revealed that opposition parties and candidates received much less coverage than GPE . They further referred to the unlawful electoral campaigning for GPE by the President . They also complained that the CARDINAL main nationwide television channels had waged a wave of negative publicity against the first applicant political party . The applicants submitted to ORG transcripts of all the television programmes , as well as video recordings , numbering CARDINAL videocassettes .

The case was tried by ORG Justice PERSON , sitting in a single - judge formation . The first hearing was held on DATE . Before the start of the trial and at the first several hearings the applicants lodged a number of procedural motions , seeking discovery of new evidence , summoning of additional witnesses and experts , obtaining examination of certain written materials , video recordings etc . According to the applicants , nearly all motions lodged by them were refused by the judge without good reason and/or in breach of the domestic procedural rules . The Government contested that ; they stressed that the same judge granted a number of motions introduced by the applicants . Furthermore , according to the applicants , at the first hearing the judge said that by lodging so many motions the applicants tried to protract the proceedings . On CARDINAL occasions the applicants challenged the judge , but he refused to withdraw from the case .

On DATE ORG dismissed the claim . ORG found no violations of electoral law capable of undermining the genuine will of the voters . ORG noted , in particular , the following :

“ The court is not in a position to accept the arguments of [ the applicants ] that the information coverage of [ the DATE electoral campaign ] was conducted with such egregious violations of electoral law , namely , preferential media coverage of CARDINAL political party and the candidates put forward by it , that it was not possible to ascertain the genuine will of the voters .

First , electoral law does not provide for any limitations on the number of election - related events organised by the political parties in the course of the electoral campaign ; the number of such events depends on the political parties themselves . The only exception is the maximum amount of expenditure , which is the same for all political parties taking part in the electoral campaign and stipulated by law . However , the scope of media coverage of the election - related events of the political parties depends on the number of those events .

Second , [ the applicants ] do not take into account that the coverage in question was conducted not only by CARDINAL television channels but also by other mass media , in particular , radio stations and the printed mass media .

Third , according to the [ judgment of ORG of GPE of DATE , see applicable domestic law below ] , [ the constitutional right to seek , receive , transmit , produce and disseminate information freely ] shall not be unnecessarily interfered with .

Fourth , the applicants’ arguments that there is an objective link between the amount of information about a political party disseminated by the television channels and the number of voters who voted for this party in the election are based on assumptions and are refuted by their own evidence .

Fifth , having examined the transcripts [ submitted by the applicants ] , the court concludes that the applicants classified the stories [ related by the journalists on TV ] as information about a certain political party on the basis of their own subjective perceptions , in particular on the basis of their wrongful assumption that all voters undoubtedly know that persons whose activities those stories covered belonged to a particular political party ... ORG of GPE , in its judgment of DATE , explained that a condition sine qua non of electoral campaigning was dolus specialis , that is , a special intention to persuade the voters to support or undermine a certain candidate or political party ... ORG noted that media coverage without that dolus specialis did not constitute electoral campaigning ... The court has examined the transcripts of news and analytical programmes broadcast by CARDINAL television channels over DATE within the time - period from DATE to DATE . Examination of those materials shows that it is not possible to accept the ORG contention that the television channels disseminated materials about candidates and political parties capable of being classified as electoral campaigning in the course of the electoral campaign ... There are likewise no objective data confirming that the television channels had a specific intention to persuade the voters to vote for GPE while covering the pre - electoral trips of the leaders of that party . The same is true in respect of the television coverage of the speech of President PERSON at the [ GPE general meeting in GPE in DATE ] . The court also considers it necessary to note that , pursuant to section CARDINAL of ORG , ORG audio - visual media shall include in their DATE informational programmes information about statements , communications and press conferences of the President of GPE as well as other facts about the activities of the federal state bodies which are of public significance . The court disagrees with the applicants’ contention that the President of GPE conducted unlawful electoral campaigning in support of GPE .

It follows that there have been no violations of electoral law which would prevent the genuine will of the voters from being ascertained ... [ The ORG election observation mission report ] likewise does not contain [ information about ] those violations ... The applicants’ action for invalidation of the election results can not therefore be allowed ” .

In respect of the episode of DATE ( reporting on PERSON voting , see paragraph DATE above ) ORG held as follows :

“ ... ORG can not accept the ORG contention that there was unlawful electoral campaigning for GPE on the part of the President of GPE on DATE .

Thus , having examined during the hearing a video recording of the ORG items reporting on Mr PERSON casting his vote in the PERSON elections , ORG has established that the President of GPE refused to tell the journalist who he voted for . He did not mention any political party , which could have been classified as campaigning .

It follows that there have been no violations of electoral law which would prevent the genuine will of the voters in the elections from being ascertained ... and could be a ground for invalidating the ORG ’s decision approving the outcome of the ballot ... ”

The applicants appealed . They argued that the first - instance court had examined only a minor part of the evidence adduced by them , in particular around CARDINAL per cent of transcripts and CARDINAL per cent of video recordings . According to the applicants , that approach violated the principle of direct examination of evidence . The applicants further disagreed with other findings of the first - instance court .

On DATE ORG , sitting as a court of appeal , composed of Justices PERSON and PERSON , dismissed their appeal . ORG observed , most notably , the following :

“ The arguments contained in the grounds of appeal are unpersuasive .

Having examined transcripts for DATE ( CARDINAL and DATE to CARDINAL DATE ) and having heard the GPE representatives , the [ first - instance ] court made a decision on the basis of its examination of the evidence adduced . It decided to examine transcripts for DATE proposed by the parties [ to the proceedings ] within the limits defined by the court . This method of examination of evidence did not violate the principle of equality of the parties . It allowed each of them to propose for examination their main transcripts capable of proving clearly , in their view , the violations of electoral law or absence thereof . The court accordingly proceeded to examine transcripts for DATE proposed by the applicants ( DATE , CARDINAL , DATE and DATE , DATE , DATE and DATE DATE and DATE ) and for DATE proposed by the ORG representatives ( DATE and DATE ) . Additionally , the court examined the transcript and the videotape of DATE , that is , DATE . Overall , the court examined recordings of CARDINAL main television channels for DATE , that is , MONEY of those submitted .

[ Factual ] circumstances as established by [ the first - instance court ] refute the allegations of inequality of the political parties and clear preference for CARDINAL of them in so far as access to the mass media is concerned ” .

The appellate court also agreed with the other findings of the first - instance court .

ORG is composed of CARDINAL members . At the material time CARDINAL members of ORG were elected from the lists of candidates put forward nationwide by the political parties . Those seats were distributed in proportion to the percentage of votes obtained by those political parties which had cleared a threshold of MONEY of votes . The remaining CARDINAL seats were contested in “ single mandate electoral districts ” ( CARDINAL - seat constituencies ) , on a majority basis in CARDINAL rounds , with candidates being put forward by the political parties or independently .

On DATE the PERSON on basic principles of elections and referendums was enacted ( PERSON no . CARDINAL-FZ , LAW ) . It was amended on DATE and DATE . Further , the DATE elections were governed by LAW of DATE , amended on DATE ( Law no . CARDINAL-FZ , LAW ) . Media coverage of elections was also regulated by the LAW by ORG ( Federal Law No . CARDINAL of DATE , LAW ) . Certain provisions of the law on media coverage of elections were developed in the documents of the ORG , in particular in Decree no . CARDINAL/CARDINAL - CARDINAL , and interpreted by ORG in its judgment of DATE no . CARDINAL ( for more details , see below ) .

Pursuant to section CARDINAL of LAW , the ORG - owned audio - visual mass media were obliged to disseminate information about the activities of ORG bodies and officials , in particular reporting on the decisions and acts of the President of GPE provided for by LAW , his declarations and announcements , press conferences and other activities “ which are of public significance ” .

Sections DATE and CARDINAL of LAW proclaimed the principle of equal access of candidates to the media , including the audio - visual media . The law distinguished between “ informing ” the population in the course of the electoral campaign and “ electoral campaigning ” ( or “ agitation ” , agitatsiya ) .

“ Electoral campaigning ” was an activity undertaken with the aim of encouraging voters to vote for or against a certain candidate . Electoral campaigning on television was permissible as from DATE before DATE and was to be ceased on DATE .

Holders of certain higher public offices ( including that of the President of GPE ) and journalists were not allowed to engage in electoral campaigning unless they were formally registered as candidates . In any event it was illegal for them to do so while using the advantages of their official status on pain of administrative fines . The maximum amounts of expenditure were prescribed by law . The fact that an item of information - an article , a video clip and so on - was political campaigning was to be mentioned in the publication , and the source of funding should be indicated .

The law enumerated situations which could be characterised as campaigning . They included , inter alia , dissemination of materials in which information about a particular candidate is prevalent and accompanied by positive or negative comments , analysis of the consequences of electing this or that candidate , information about activities of a candidate which were not related to the performance of his official duties , and so on . The law also established a number of requirements of and limitations on the campaigning .

The law at the time provided that all candidates and parties had an equal opportunity to obtain a certain amount of free and paid airtime or printed space for their electoral campaigning . The conditions for obtaining airtime were identical for all candidates , and concerned both public and private mass media . Political parties registered at the federal level had a right of equal access to the national mass media , including ORG and radio - broadcasting stations . Individual candidates ( affiliated or not to a political party ) had similar rights in respect of access to the regional mass media .

“ Electoral campaigning ” was distinguished in the law from “ informing ” . Informing was mainly the task of the “ ORG authorities , municipal authorities , electoral commissions , media companies , legal entities and individuals ” ( section CARDINAL ) of LAW , section GPE ) of LAW ) . It had to be objective , factually accurate and should not show preference for any candidate . Informing should consist of giving a neutral account of the progress of the electoral campaign , of the candidates’ profiles , platforms and so on , within the “ information slots ” ( airtime or printed space dedicated to informing ) . Those “ information slots ” should not be aligned with the position of any candidate and should not contain comments or value judgments . The mass media had to separate objective information from statements of opinion . At the same time the mass media were free in their editorial policy ( section CARDINAL ) of LAW ) and were allowed to comment on political events and personalities outside the “ information slots ” .

The Constitutional Court of GPE has ruled that professional journalists are regarded as involved in electoral campaigning only if they do so with special intent to campaign in favour of or against one or more candidates ( judgment of DATE , no . CARDINAL ) . Thus , in order to distinguish between campaigning and informing ( that is , normal journalistic activity ) the courts have to establish whether or not the journalist pursued a specific aim of influencing the voting , dolus specialis . Where there is no such specific aim ( the existence of which should be established by the courts ) , the materials , articles and so on must be considered as “ informing ” . ORG further stressed that , whilst the law required that information slots on TV and radio be neutral , the mass media were not prohibited from expressing their own opinion about candidates or giving comments outside the scope of the information slots .

Under LAW , the ORG was the central body responsible for organising and overseeing the electoral campaign at the federal level . It was also empowered to consider complaints about breaches of electoral law ( section CARDINAL of LAW ) . The ORG was entitled to refer such complaints to the law - enforcement and other official bodies for further consideration and reaction . Decisions of the ORG , taken within its competence , were binding on the lower electoral commissions , federal and regional ORG bodies , public officials , local authorities , candidates , parties , organisations , and voters . State broadcasting companies were required by law to provide free airtime to the candidates and parties during the elections and were required to give replies to the requests of the electoral commissions within DATE of receipt .

Section CARDINAL of LAW provided that unlawful acts and omissions of the public authorities and officials were amenable to judicial review . It further established rules of jurisdiction on applications for judicial review of acts and omissions of the ORG and regional commissions . LAW also provided for an appeal to a higher electoral commission against decisions of the lower electoral commissions . ORG of GPE had power to invalidate the results of the federal elections if the violations committed did not permit the genuine will of the voters to be ascertained ( sections CARDINAL of LAW ) .

The Code of Administrative Offences ( ORG ) of DATE established sanctions for certain breaches of electoral law , such as the failure by the mass media to comply with the rules of press coverage of the electoral campaign ( LAW ) , or unlawful electoral campaigning through audio - visual and printed mass media by a candidate ( LAW . LAW established sanctions for electoral campaigning by persons who , by virtue of their position , were precluded from participating in electoral campaigning . LAW of the LAW established sanctions for the unlawful production and dissemination of campaigning materials . Offences provided by the above mentioned provisions of the LAW were punishable by fines ranging from MONEY ( RUB ) , depending on the status of the offender and the seriousness of the violation .

ORG ) , at its CARDINALst ( Guidelines ) and CARDINALnd ( Report ) sessions on DATE and DATE adopted the “ Code of Good Practice in Electoral Matters ” . ORG distinguished CARDINAL particular obligations of the authorities in relation to the media coverage of electoral campaigns : on the one hand to arrange for the candidates and/or parties to be accorded a sufficiently balanced amount of airtime and/or advertising space including on state television channels ( “ the access to the media obligation ” ) and on the other hand to ensure a “ neutral attitude ” by state authorities , in particular with regard to the election campaign and coverage by the media , by the publicly owned media ( “ the neutrality of attitude obligation ” ) ( Explanatory Report to the Code of Good Practice on Electoral Matters , § CARDINAL ) . ORG Code of Good Practice in Electoral Matters also recommended the creation of an effective system of electoral appeals , among other things , to complain about non - compliance with the rules of access to the media ( § CARDINAL ) .

The standards relating to public service broadcasting were further developed by ORG in the Appendix to Recommendation no . R ( CARDINAL ) CARDINAL on “ ORG ( DATE ) . ORG recommended that “ the legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy ” . Furthermore , “ the legal framework governing public service broadcasting organisations should clearly stipulate that they shall ensure that news programmes fairly present facts and events and encourage the free formation of opinions . The cases in which public service broadcasting organisations may be compelled to broadcast official messages , declarations or communications , or to report on the acts or decisions of public authorities , or to grant airtime to such authorities , should be confined to exceptional circumstances expressly laid down in laws or regulations ... ” . Finally , in the Appendix to Recommendation Rec(CARDINAL)CARDINAL on “ ORG for the Broadcasting Sector ” , ORG again stressed the importance for States to adopt detailed rules covering the membership and functioning of such regulatory authorities so as to protect against political interference and influence .

Recommendation no . R ( CARDINAL ) CARDINAL of Committee of Ministers of ORG on measures concerning media coverage of election campaigns provided that regulatory frameworks in Member GPE should provide for the obligation of TV broadcasters ( both private and public ) to cover electoral campaigns in a fair , balanced and impartial manner , in particular , in their news and current affairs programmes , including discussion programmes such as interviews or debates . ORG also recommended the GPE to examine the advisability of including in their regulatory frameworks provisions whereby free airtime is made available to candidates on public broadcasting services in electoral time , “ in a fair and non - discriminatory manner ” , and “ on the basis of transparent and objective criteria ” .

ORG ( a body of ORG based in GPE ) , at its FAC session in GPE , on DATE adopted the “ Declaration on Criteria for Free and Fair Elections ” . Pursuant to that Declaration every candidate must have an equal opportunity of access to the media , particularly the mass communications media , in order to put forward their political views ( LAW ) . Everyone must have the right to campaign on an equal basis with other political parties , including the party forming the existing government ; and to seek , receive and impart information and make an informed choice ( LAW ) . The GPE must ensure non - partisan coverage in ORG and public - service media and equality of access to such media ( LAW .