Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE . He was detained in FAC until his release on DATE .

The applicant has been convicted CARDINAL times since DATE , initially notably for smuggling and thefts . Since DATE he has spent most of his life in prison .

On DATE ORG convicted the applicant on CARDINAL charges of joint aggravated ( armed ) robbery of a bank , sentenced him to CARDINAL years’ imprisonment and ordered his preventive detention .

On DATE ORG convicted the applicant of aggravated robbery - style theft committed against a money courier . Taking into account the term of imprisonment from the judgment of DATE , it imposed on the applicant a cumulative sentence of DATE imprisonment , but quashed the order for preventive detention . The remainder of his prison sentence was suspended on DATE and the applicant was released and placed on probation ; this suspension was subsequently revoked .

On DATE ORG convicted the applicant , in particular , of CARDINAL counts of joint aggravated ( armed ) robbery , of aiding and abetting another joint aggravated robbery , of CARDINAL counts of aggravated theft and CARDINAL count of attempted aggravated theft . It sentenced him to CARDINAL years’ imprisonment and ordered his preventive detention under LAW ( see paragraphs CARDINAL below ) .

The Cologne Regional Court found that the applicant , who had been released from prison on DATE and had a job , had committed the said offences DATE and his arrest in DATE . Together with CARDINAL accomplices , he had robbed a money courier and a bank , armed . He had further stolen or attempted to steal together with others several cars which had later been used when committing the CARDINAL robberies and another bank robbery in which the applicant had not otherwise participated .

Having consulted an expert , ORG found that since his youth the applicant had been strongly inclined to commit offences and to make his living thereby , even though he could have worked . Serving long sentences had not prevented him from reoffending and from committing more and more serious offences at ever shorter intervals . Since there were no indications that the applicant would not reoffend , he was dangerous to the public .

On DATE ORG dismissed the applicant ’s appeal on points of law against the judgment of DATE , which thereby became final .

On DATE the ORG reopened the proceedings in respect of CARDINAL of the applicant ’s accomplices , PERSON , who had also been convicted of bank robbery on DATE , and acquitted him . The third accomplice to the robbery , ORG . , had confessed that he had wrongfully incriminated both PERSON and the applicant in this offence . The applicant ’s request for reopening of the proceedings against him was subsequently dismissed .

On DATE ORG suspended the order remanding the applicant in preventive detention from DATE ( when the applicant would have served his full prison sentence ) , granted probation and ordered the applicant to be placed under supervision of conduct ( Führungsaufsicht ) for DATE .

The applicant served the sentence imposed by the judgment of DATE in full , as well as the remainder of the sentence imposed by the judgment of DATE , until DATE .

On DATE ORG convicted the applicant of aggravated ( armed ) robbery committed with others , sentenced him to CARDINAL years’ imprisonment and ordered his preventive detention . It found that the applicant , armed with a machine gun , had robbed a bank together with an accomplice in DATE ; he had been in custody since then .

On DATE ORG quashed the judgment of DATE so far as the applicant ’s sentence and his preventive detention were concerned and remitted the case to ORG .

On DATE ORG again sentenced the applicant to CARDINAL years’ imprisonment . It considered the conditions for his preventive detention under LAW to have been met . However , for reasons of proportionality , the court did not order the applicant ’s preventive detention , which would then have been of indefinite duration . It argued that from DATE , the applicant would be placed in preventive detention on the basis of the judgment of DATE , as the provisional suspension of his preventive detention on DATE was likely to be revoked , and that he would be of advanced age afterwards .

On DATE ORG , acting as the court dealing with the execution of sentences , revoked the suspension of the applicant ’s provisional preventive detention granted on DATE pursuant to LAW CARDINAL of LAW ( see paragraph CARDINAL below ) in view of his renewed conviction for aggravated robbery committed in DATE .

On DATE ORG , disagreeing with ORG view , dismissed the applicant ’s appeal against the decision of DATE . The applicant ’s objection was of no avail .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) against the decision of ORG dated DATE . It found that the applicant had failed sufficiently to substantiate his complaint , which was therefore inadmissible . It observed , however , that the provisions of LAW did not permit the revocation of the suspension of the applicant ’s provisional preventive detention after the expiry of the DATE period of supervision of his conduct . It was firstly up to the courts dealing with matters relating to the execution of sentences to examine whether the revocation decision could be amended at the applicant ’s request or of the court ’s own motion .

On DATE ORG dismissed the applicant ’s request , supported by ORG , for the decisions of ORG dated DATE and of ORG dated DATE to be set aside . It found that under LAW , second sentence , of LAW ( see paragraph CARDINAL below ) , the supervision of the applicant ’s conduct for DATE ordered in DATE had not ended until now as the applicant had been detained since DATE and the time spent in detention did not count towards the period of the supervision of his conduct . Therefore , the provisional suspension of the preventive detention order against him could still be revoked in DATE .

On DATE the GPE ORG started the proceedings for examination of the need for the applicant ’s preventive detention after the end of his prison term by requesting ORG to send the case file and by ordering FAC authorities to make a statement .

NORP The director of FAC thereupon sent a statement dated DATE , which he supplemented at the court ’s request on DATE . Following CARDINAL reminders from ORG , ORG submitted the case file to the court in DATE .

On DATE ORG requested a psychiatric expert to give an opinion on whether the applicant was still so dangerous that his preventive detention was necessary .

The applicant served his prison sentence in full , DATE . From CARDINAL DATE the applicant was in preventive detention ordered in the judgment dated DATE .

Following an inquiry of ORG at the applicant ’s request , the latter was examined by the psychiatric expert on DATE . Following CARDINAL further requests made by the applicant to make progress in the proceedings , a report drafted by CARDINAL psychiatric experts was submitted to the court on DATE .

On DATE the GPE ORG , having heard the applicant and his counsel on DATE and having consulted the director of FAC and CARDINAL experts , ordered the execution of the preventive detention order in respect of the applicant made in ORG judgment of DATE .

ORG considered in detail the previous convictions of the applicant , aged DATE , notably his convictions for aggravated robbery and robbery - style theft by judgments dated DATE , DATE , DATE and DATE .

ORG found that the execution of the preventive detention order against the applicant was still necessary in view of its objective ( Article CARDINAL § CARDINAL of LAW , see paragraph DATE below ) . In the court ’s view , the applicant was likely to commit further serious offences similar to those he had previously committed if released ( Article CARDINAL § CARDINAL of LAW , see paragraph CARDINAL below ) .

In ORG view , the applicant had been a persistent offender since his youth , who had reoffended shortly after being released on probation and after serving long prison sentences . He did not have any family ties outside prison and did not have any precise plans as to what he would be doing when released . He was lively for his age . He suffered from orthopaedic health problems , notably injuries to his left knee and his hip , which , as found by the prison doctor , entailed a considerable but not extreme walking disability . His walking ability could have been considerably improved by an artificial hip , but he refused to have the operation while he was in prison . Having consulted the prison doctor , the court took the view that the applicant ’s walking disability could not yet be considered so severe as to render him physically unable to commit an offence , notably as his previous offences had not required significant mobility .

ORG , having regard to the report dated DATE by the CARDINAL psychiatric experts who had examined the applicant , took the view that the applicant ’s personal and social situation remained similar to that which had existed when he was released from prison in DATE at DATE . He had not changed his attitude towards offences and therefore remained dangerous .

On DATE ORG dismissed the applicant ’s appeal against the GPE ORG decision of DATE . It did not share the view expressed by ORG in its decision dated DATE that the revocation of the suspension of the applicant ’s provisional preventive detention had no longer been possible on DATE according to the provisions of LAW . Pursuant to LAW ( see paragraph CARDINAL below ) , preventive detention would cease to apply at the end of the offender ’s supervision of conduct if the court had not revoked the suspension of his preventive detention before that date . However , the supervision of the applicant ’s conduct for DATE ordered in DATE had not ended , as the applicant had been detained since DATE and the time spent in detention did not count towards the duration of the supervision of conduct ( Article CARDINAL § CARDINAL , second sentence , of LAW ) .

NORP Moreover , ORG found that , contrary to the applicant ’s submissions in his appeal , the fact that ORG had failed to reach a decision on the applicant ’s preventive detention before the applicant had served his full prison sentence on DATE ( Article CARDINAL § CARDINAL of LAW ) did not render its decision unlawful . In any event , the mistake had been remedied ex nunc when the decision was taken .

According to ORG , the applicant needed to be kept in preventive detention in order to protect the public from particularly dangerous offenders . The applicant did not truly question or regret his offences . As found by CARDINAL experts in an additional report , the applicant ’s statements concerning his offences were very similar to those he had made before his previous release from prison , following which he had reoffended . The applicant ’s age and the health problems accompanying it did not , at least at the time , warrant a different conclusion as to the danger he presented to the public . The applicant had also already reached retirement age when he had committed his last offence . As found by the prison doctor on DATE , his knee and hip were damaged . The court found that these illnesses caused pain , but did not entail a walking disability .

NORP Remanding the applicant in preventive detention was also not disproportionate , as he was likely to commit serious offences if released . However , in view of his present illnesses and the usual diminution of physical fitness with advancing age the applicant ’s preventive detention would probably not last until its termination in DATE , but would be suspended on probation . Therefore , the applicant should be prepared for a life outside prison .

On DATE ORG dismissed the applicant ’s objection against that decision .

On DATE the applicant lodged a complaint with ORG against the decisions of ORG dated DATE and of ORG dated DATE . He claimed that his right to liberty had been violated . He argued that , as had been expressly found in the decision of ORG dated DATE , the revocation of the suspension of his provisional preventive detention had no longer been possible on DATE . Moreover , he had been remanded in preventive detention since DATE without a legal basis , in particular because the courts had failed to reach a decision on the necessity of that remand in custody within a reasonable time , as required by Article CARDINAL § CARDINAL of LAW as interpreted in the well - established case - law of the courts of appeal and of ORG itself ( see paragraph DATE below ) . Due to his age , DATE , and his walking disability , which had already made him physically unable to reoffend , his preventive detention was also disproportionate .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . DATE ) . It found that the complaint had no prospects of success .

ORG considered that , even assuming that the decisions on the necessity to remand the applicant in preventive detention should have been based on paragraph CARDINAL of Article CARDINALc of LAW , they did not violate LAW . Contrary to the applicant ’s view , he had not been detained without legal basis in the period between the end of his prison term and ORG decision ordering the execution of the preventive detention order against him . Referring to its decision of CARDINAL DATE ( file no . QUANTITY BvR CARDINAL/CARDINAL , see paragraph CARDINAL below ) , it found that the execution of a preventive detention order on the basis of a judgment of the sentencing court ordering it under LAW was permitted if ORG dealing with the execution of sentences had begun with its examination under LAW before the person concerned had fully served his prison sentence , even if it had not yet taken its decision .

The Federal Constitutional Court further took the view that ORG , which had started the proceedings concerning suspension of the applicant ’s preventive detention DATE the applicant ’s prison term , had not delayed the proceedings in a manner which would violate his right to liberty .

Furthermore , the decision of the courts dealing with the execution of sentences not to suspend the preventive detention order against the applicant and grant probation did not appear arbitrary in view of the applicant ’s repeated serious offences and there was no violation of the ORG duty to investigate the matter .

On DATE the ORG decided to suspend the preventive detention order made against the applicant in ORG judgment of DATE and grant probation as of DATE ; it further ordered supervision of the applicant ’s conduct . Having regard to all the , including , in particular , the applicant ’s walking disability , the court considered , in accordance with the view taken by the medical expert it had consulted and contrary to the view taken by the director of ORG and ORG , that it was to be expected that the applicant would not commit further serious offences similar to those he had previously been convicted of if released PERSON ( Article CARDINAL § CARDINAL of LAW ) .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions relevant to the present case can be summarised as follows .

A sentencing court may , at the time of an offender ’s conviction , order his preventive detention , known as a measure of correction and prevention , under certain circumstances in addition to his prison sentence , a penalty , if the offender has been shown to be dangerous to the public ( LAW ) .

In particular , the sentencing court orders preventive detention in addition to the penalty if someone is convicted of an intentional offence and sentenced to CARDINAL years’ imprisonment and if the following further conditions are satisfied : firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .

Preventive detention may only be ordered if such a measure is proportionate to the gravity of the offences committed by , or to be expected from , the perpetrator as well as to his dangerousness ( LAW ) .

Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and DATE ( CARDINAL)(CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it temporarily suspends the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension . Pursuant to paragraph CARDINAL of that Article , preventive detention may only be executed on the explicit order of the court if its execution has not started DATE after the order becomes final , unless paragraph CARDINAL applies . ORG spent by the offender in detention by order of a public authority shall not count towards this time - limit . The court shall order the execution of the preventive detention order if the objective of the measure still requires it .

As regards the lawfulness of the execution of a preventive detention order in cases in which the person concerned has served his sentence in full , but the courts dealing with the execution of sentences have not yet taken their decision under LAW as to whether preventive detention was still necessary in view of its objective , the following principles have been established in the NORP ORG case - law . The execution of the preventive detention order made in the judgment of the criminal sentencing court under LAW is lawful and does not violate the constitutional right to liberty of the person concerned if the courts dealing with the execution of sentences have started examining the need for preventive detention before the person concerned has served his prison sentence in full and have terminated the proceedings without avoidable delays and within a reasonable time ( see ORG , file no . CARDINAL , decision of CARDINAL DATE , Collection of the decisions of ORG ) , vol . CARDINAL , pp . CARDINAL ss . ; ORG , file no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , ORG DATE , pp . CARDINAL ss . ; ORG , file no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE ; and ORG , file no . CARDINAL Ws CARDINAL - CARDINAL/CARDINAL , decision of CARDINAL DATE ) . The execution of a preventive detention order was not permitted , in any event , if a convict , owing to avoidable delays , has already been in preventive detention for DATE without a need for preventive detention having been established ( see ORG , ibid . , p. CARDINAL ) . In such cases , the execution of the preventive detention order had to be interrupted at the detainee ’s request under LAW and CARDINAL , read in conjunction with LAW ( see paragraph CARDINAL below ) , irrespective of the dangerousness of the person concerned ( see ORG , ibid . , p. CARDINAL ; and ORG , file no . CARDINAL Ws CARDINAL - CARDINAL/CARDINAL , decision of CARDINAL DATE ) .

Article GPE of the Criminal Code governs the duration of preventive detention . Paragraph CARDINAL , first sentence , of that LAW , in its version in force at the relevant time , provides that if there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release .

Article CARDINAL g concerns the revocation of the suspension on probation of a preventive detention order . Pursuant to paragraph CARDINAL no . CARDINAL , the court shall revoke the suspension of a preventive detention order if the convicted person , during the period of supervision of conduct , commits an unlawful act which shows that the objective of the measure necessitates his preventive detention . Paragraph CARDINAL provides that preventive detention shall cease to apply at the end of the offender ’s supervision of conduct if the court did not revoke the suspension of his preventive detention before that date .

Article CARDINAL of LAW regulates the duration of the supervision of conduct . Pursuant to paragraph CARDINAL , in its version in force between CARDINAL DATE and DATE , supervision of conduct shall begin once the order of that measure has become final ( first sentence ) . The time the convicted person spends in detention by order of a public authority does not count towards the duration of the supervision of conduct ( second sentence ) . DATE and DATE the same provision was made in paragraph CARDINAL of Article CARDINAL of LAW .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides that if objections are raised to the admissibility of the execution of a penalty , a court decision shall be obtained . The further execution of the penalty shall not be suspended thereby ; the court may , however , order a suspension of execution ( Article CARDINAL § CARDINAL of LAW ) . Pursuant to LAW , LAW applies , mutatis mutandis , to the execution of measures of correction and prevention .

On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and about the retrospective order of the ORG preventive detention respectively ( file nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all provisions of LAW on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the most . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law . If the above pre - conditions were not met , those detainees had to be released no later than DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its judgment , ORG stressed that the fact that the LAW stood above the LAW in the domestic hierarchy of norms was not an obstacle to an international and NORP dialogue between the courts , but was , on the contrary , its normative basis in view of the fact that the LAW was to be interpreted in a manner that was open to public international law ( völkerrechtsfreundliche GPE ) . It stressed that , in line with that openness of the LAW to public international law , it attempted to avoid breaches of the LAW in the interpretation of the LAW . In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON v. GPE ( cited above ) .


ROBERTS AND ROBERTS v. THE UNITED KINGDOM

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Simon Brown;Sverre Erik Jebens;Vincent A. De Gaetano

The applicants , Mr PERSON ( “ the first applicant ” ) and PERSON PERSON ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively . The first applicant lives in GPE and the second applicant lives in PERSON .

CARDINAL .

The applicants are brothers and active members of ORG ( “ BNP ” ) , a political party . At the time of the events in question , the first applicant , the GPE and GPE regional organiser for the ORG , was a potential candidate for the ORG in the GPE mayoral election due to take place in DATE . He was also a candidate for the ORG in the NORP elections in DATE and in the GPE general election of DATE . The second applicant was a candidate for the ORG in the DATE and DATE general elections .

On DATE the applicants attended a ORG rally in GPE to promote the campaign for the GPE mayoral and local elections due to take place in DATE . Over GBP CARDINAL in donations was collected during the rally .

Following the rally , in its DATE NORP newsletter , the ORG published a report alleging that NORP and NORP had forcibly entered the first applicant ’s home following the meeting of DATE and stolen the collection money . In the article , headed “ GPE ‘ rally’ shambles ” , it was reported :

“ DATE a meeting to reinvigorate the party in GPE ’s ORG turned into a shambles . The meeting was hijacked by disruptive elements , many of whom not members of our party DATE and the event served not to breathe new life into LOC and support the party ’s GLA [ Greater London Authority ] campaign DATE , but to attack the party , its leadership and add personal grievances of all kinds .

The keynote address was given by the party ’s previous , old leader , Mr PERSON , who launched a strong attack upon the party . This is merely the latest in a continual barrage of attacks that began DATE , the object of which is to cause as much disruption as possible .

[ D. ] of GPE , east GPE is henceforth a proscribed person . A non - member , [ NORP ] with [ NORP ] ( himself a proscribed person ) and CARDINAL other forcibly entered the home of ORG the GPE regional organiser PERSON on PERSON and , with threats , stole £ CARDINAL collection taken at DATE east GPE meeting , [ NORP ] and [ NORP ] were prominent in turning the East End rally into a farcical beer garden . The matter is now in the hands of the police . ”

The DATE edition of ORG , a far - right magazine owned and edited by Mr PERSON , the ORG ’s former leader , also reported on the rally in an article headed “ GPE rally best for DATE ” :

“ East GPE saw CARDINAL of its best BNP meetings for DATE on DATE when an audience of CARDINAL gathered above a pub in GPE to hear speeches aimed at generating support for the party ’s campaign to contest the GPE mayoral election and the elections to ORG in DATE .

The meeting ended in tremendous enthusiasm and a collection raised a really splendid £ MONEY . ”

NORP The rally was also reported in an article by Mr PERSON in the DATE edition of ORG , a magazine that reports on the activities of far - right groups in LOC and which is openly critical of the ORG :

“ The fractious infighting in ORG shows little sign of abating as its north - west regional organiser resigns and its former leader , PERSON , rallies forces against the current leadership in GPE .

Over CARDINAL GPE activists attended the meeting arranged by the NORP east GPE organiser ...

Despite the best efforts of PERSON to keep to the set agenda , PERSON and others openly attacked the leadership , PERSON ’s exceptionally robust and bitter speech never mentioned anyone by name , referring only to ‘ our chairman’ and ‘ our leadership’ . His words were punctuated by bursts of applause , especially when he directly criticised the party leadership . ”

The story was picked up by Mr PERSON in the DATE edition of ORG . In an article headed “ Night of the short knives ” , he reported :

“ ... Shortly after the rally the BNP March PERSON bulletin came out with the claim that [ NORP ] and [ NORP ] had turned up at Roberts’ house and stolen the money collected at the meeting ... The party claims that the police have been informed about the alleged theft .

The story doing the rounds is that [ NORP ] and [ NORP ] initially went to collect the £ CARDINAL booking fee for the meeting room , which PERSON had forgotten to pay in his rapid exit from the pub , but seeing all the money it appears that temptation got the better of them and they took the lot . ”

D. and NORP responded to the allegations in the DATE and DATE editions of Spearhead , setting out their version of the events of DATE and denying the allegations of forced entry and attempted theft of the collection money .

In DATE , Mr PERSON wrote a further article for ORG in his regular column called “ News from the sewers ” . The article was headed “ ORG on ” and , in so far as material , reported as follows :

“ ... the ORG ’s DATE bulletin accused CARDINAL members of stealing the collection from the meeting . The story that was put around was that [ NORP ] and [ NORP ] ... stole the money from the house of PERSON , the GPE and GPE organiser . It appears that the police investigated but decided not to act .

Perhaps the police are now more interested in PERSON and his brother PERSON . [ NORP ] and [ NORP ] recently issued a long open letter attacking PERSON [ the leader of the BNP ] and his supporters , including PERSON . It explains that it was PERSON who stole the money from the rally and that although it went against the grain , [ NORP ] and [ NORP ] reluctantly threatened to report him to the police . After PERSON angrily returned the money , the letter alleges , he and his brother PERSON threatened to ‘ kneecap , torture and PERSON [ D. ] , [ NORP ] and their respective families .

The letter complains that the PERSON leadership described PERSON as a self - made millionaire who was leaving the City to devote his time and fortune to the ORG , but he turned out to be a disappointment . ‘ It was now quite obvious that a little village somewhere , was missing its ORG . ”

The applicants commenced libel proceedings against ORG and Mr PERSON on DATE in respect of the article of DATE . The defendants raised CARDINAL defences to the claim : justification ( that the facts reported were true ) and qualified privilege ( that there was a public interest in the reporting and that the statements had been made without malice – see PERSON at paragraph CARDINAL below ) . In particular , the defendants relied upon the “ reportage ” variant of the qualified privilege defence , set out in the case of ORG , which permits journalists to repeat allegations that have already been published without verifying the accuracy of the allegations in certain circumstances ( see paragraphs CARDINAL - CARDINAL below ) .

NORP On DATE and DATE a single judge sitting in the ORG heard a preliminary issue on the question of qualified privilege . In his judgment of CARDINAL DATE , he explained the general background as follows :

“ ... The ORG regularly places candidates before the electorate , both in GPE and elsewhere , and that in itself could be said to render the allegations and crossallegations ( especially of apparent criminality ) as of ‘ significant interest’ , but it is also relevant to have in mind that there was in or DATE , when the article was published ... ‘ heightened public interest in the BNP’ . This was in large measure because Mr PERSON , who had taken over the leadership from Mr PERSON in DATE , had been given a high media profile in the course of presenting the party and its policies to the electorate .

My attention was drawn , in particular , to an article published in DATE in the ORG journal ORG ... [ which ] attracted a certain amount of media attention . Moreover , following success in local elections in GPE in DATE , the ORG had begun to put up more candidates in elections . Because of this high profile , people were naturally taking a greater interest in the party and also in policy and doctrinal divisions among its activists . A focus of particular interest was the split CARDINAL factions generally identified , respectively , with PERSON and PERSON ... ”

He summarised the various articles published in the NORP , PERSON and ORG ( see paragraphs CARDINAL above ) and continued :

“ CARDINAL . It was against this background that the Defendants reported the [ D./R. ] denial of the allegation of criminality , to which they had already given currency in the DATE issue . It is clear to me that readers of the words complained of would be well aware of Mr Gable ’s antipathy to the ORG and that he was merely reporting the conflicting positions rather than taking sides with either . They could hardly conclude that he had been present as an eye - witness and would , therefore , realise that he was not in a position to espouse CARDINAL version or the other . What would be of interest to the reader would be the fact that the allegations and cross - allegations of criminal offences were being made by ORG factions against each other , and ‘ not necessarily [ their ] truth or falsity’ ... It seems to me that these were allegations they were entitled to know about , in the context of a party presenting itself before the electorate of GPE , and especially so since the allegations against PERSON [ D. ] and [ R. ] had already been reported . ”

Referring to the relevant criteria for establishing the defence of qualified privilege set out by Lord PERSON of GPE in ORG judgment of PERSON ( see paragraph CARDINAL below ) , the judge noted that the allegations were serious and that there was a legitimate general public interest in the subject matter . While no steps had been taken to verify the information , this was not fatal in a reportage case where the fact of the allegations being made was the important element of the story . The judge further observed that the source was less significant in a reportage case , as it was not the reliability of either side which mattered but rather the nature of the quarrel . He commented that there was no urgency about the matter , that no investigation into the allegations had been conducted and that no comment was sought from the applicants . However , he noted that both claimants had in any case accepted that they would never have discussed political matters with anyone from LOC and , in light of the long history of Mr PERSON ’s interaction with the ORG , he considered that the failure to make an approach to the applicants was reasonable . Finally , he considered it obvious to readers that each of the factions was denying impropriety and accusing the other and noted that Mr PERSON was merely reporting the accusations and not “ adopting ” them . He concluded :

“ CARDINAL . There is a duty ... upon political commentators generally ... to cover the goingson in political parties , including disputes , fully and impartially . There is a corresponding legitimate interest in the public , and especially those who have a vote , to have such information available . More specifically , ORG having covered the allegations against PERSON [ D. ] and [ NORP ] in its DATE issue , it would also be incumbent on it to cover their denials ...

In all the circumstances , I have no hesitation in upholding the privilege defence . ”

He accordingly dismissed the ORG claim .

The applicants applied for leave to appeal to ORG . Leave was refused on the papers by a single judge of ORG on DATE , who endorsed the approach taken by ORG judge , observing that :

“ [ The judge ’s ] approach , which would undoubtedly be taken by this court too , is that libel litigation is not the conduct of political vendettas by other means . The article was a gratified report by the ORG ’s enemies of a venal falling out between some of its leading members and ex - members . ”

At the renewed hearing for leave on DATE , leave was granted by CARDINAL ORG judges .

The appeal was heard on CARDINAL DATE before CARDINAL judges of ORG , including the judge who had initially refused leave to appeal on the papers . The applicants wished their counsel to apply for the judge who had refused leave to appeal to withdraw from the case . However , they were advised against this course of action by their counsel on the grounds that a judge would not allow his political opinions to influence his judgment and in any case such an application risked antagonising the judge in question .

On DATE , ORG handed down its judgment dismissing the appeal .

As to the scope of the appeal , the judge who delivered the leading judgment of the court noted that in light of the pleaded defence of reportage , which had only recently been introduced to the jurisdiction through GPE , the appeal gave the court the opportunity to explore the nature and extent of that defence and its place in the libel law landscape . Following an examination of domestic and GPE authorities , the judge summarised the position as follows :

“ CARDINAL . ... [ T]he journalist has a good defence to a claim for libel if what he publishes , even without an attempt to verify its truth , amounts to reportage , the best description of which gleaned from these cases is that it is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly some other kind of dispute ... ”

The judge considered that the following matters had to be taken into account when examining whether there was a defence on the ground of reportage :

“ ( CARDINAL ) The information must be in the public interest .

( CARDINAL ) ... the publisher will not normally be protected unless he has taken reasonable steps to verify the truth and accuracy of what is published ... This is where reportage parts company with PERSON . In a true case of reportage there is no need to take steps to ensure the accuracy of the published information .

( CARDINAL ) ... To qualify as reportage the report , judging the thrust of it as a whole , must have the effect of reporting , not the truth of the statements , but the fact that they were made ...

( CARDINAL ) NORP Since the test is to establish the effect of the article as a whole , it is for the judge to rule upon it in a way analogous to a ruling on meaning ...

( CARDINAL ) This protection will be lost if the journalist adopts the report and makes it his own or if he fails to report the story in a fair , disinterested and neutral way ...

( CARDINAL ) To justify the attack on the claimant ’s reputation the publication must always meet the standards of responsible journalism as that concept has developed from PERSON , the burden being on the defendants ...

( CARDINAL ) The seriousness of the allegation ... is obviously relevant for the harm it does to reputation if the charges are untrue . Ordinarily it makes verification all the more important ...

( CARDINAL) The relevant factors properly applied will embrace the significance of the protagonists in public life and there is no need for insistence as pre - conditions for reportage on the defendant being a responsible prominent person or the claimant being a public figure ...

( CARDINAL ) The urgency is relevant ... in the sense that fine editorial judgments taken as the presses are about to roll may command a more sympathetic review than decisions to publish with the luxury of time to reflect and public interest can wane with the passage of time ... ”

On the facts of the case , the judge considered that the DATE article covered a subject of legitimate public interest . He further found that the allegations were made in the context of reportage and were not adopted by the respondents as their own , thus absolving the respondents from verifying the truth of the allegations . While the allegations were serious , the thrust of the article related to the disagreement as to who should take charge of the collection money and not whether one or the other of the protagonists had stolen it . The judge was of the view that the public were entitled to know that the ORG was divided by this dispute . He observed that the source of the information was attributed and , given that the truth of the information was not being asserted , the reliability of the source was of little significance . In this regard , he noted that Mr PERSON had made some inquiries of other sources in order to establish that the dispute was real . Although no comment was sought from the applicants , this was understandable in light of the history between them and Mr Gable . While the tone was somewhat sarcastic , it was nonetheless as neutral and disinterested as any ORG article on the ORG could be . He concluded that the impugned article constituted a piece of responsible journalism .

On DATE the applicants wrote to the judge who had initially refused leave to appeal on the papers and who had been a member of ORG bench which heard the appeal ( see paragraph CARDINAL above ) accusing him of bias . They referred to the fact that he had refused leave to appeal in the case on the papers ( see paragraph CARDINAL above ) in a manner which , they considered , indicated his hostility towards their case . They further complained that following the appeal hearing but prior to the delivery of the judgment , the judge had attended a conference on extreme speech and democracy , at which persons hostile to the BNP and acquainted with Mr PERSON had been present . They asked for confirmation of whether the judge was a subscriber to ORG . The director of ORG responded on DATE denying that there was any lack of impartiality and explaining that no political issues had been considered by ORG in the decision , which concerned solely the development of libel law .

On DATE the applicants wrote to ORG judge who had delivered the leading judgment in their case , referring to the fact that the judge who had initially refused leave to appeal had formerly been a member of ORG and alleging that as a consequence he was “ diametrically opposed to the BNP ” . They referred again to the fact that the judge had attended a conference on extreme speech and pressed for a response as to whether he subscribed to ORG . In a subsequent letter dated DATE , the applicants wrote again to the judge who had delivered the leading judgment to reiterate their complaint of bias , having discovered that Mr Gable had stood as a parliamentary candidate for ORG at the time when the judge who had refused leave on the papers was a member of that party . They concluded that PERSON and the judge were therefore personally acquainted with one another .

The applicants subsequently applied for leave to appeal the decision of ORG . In their grounds of appeal dated DATE , they contested ORG decision regarding the defence of reportage . They did not challenge the impartiality of the judge in the appeal proceedings . They were refused leave to appeal by ORG on DATE .

The defence of qualified privilege was examined by ORG in ORG [ DATE ] ORG CARDINAL . In the context of his opinion , Lord PERSON listed CARDINAL factors relevant to whether a publication could avail itself of a qualified privilege defence to libel proceedings , noting that the factors set out were illustrative only . The relevant factors he identified were :

“ CARDINAL . The seriousness of the allegation ...

NORP The nature of the information , and the extent to which the subject - matter is a matter of public concern .

NORP The source of the information ...

NORP The steps taken to verify the information .

The status of the information ...

The urgency of the matter ...

Whether comment was sought from the plaintiff ... An approach to the plaintiff will not always be necessary .

Whether the article contained the gist of the plaintiff ’s side of the story .

The tone of the article . A newspaper can raise queries or call for an investigation . It need not adopt allegations as statements of fact .

The circumstances of the publication , including the timing . ”

In PERSON v. HH ORG ( GPE ) Ltd [ DATE ] EWCA Civ DATE , the claimant , a member of a dissident party in GPE , sued the defendant newspaper , which supported the NORP government , for reporting a dispute between the claimant and A.M. , another member of his political party . The impugned report stated that A.M. had told the defendant ’s journalist that the claimant had spread malicious rumours about him ( A.M. ) and had said that A.M. ’s mother had procured women to have sexual intercourse with him at his home . At the liability hearing it was common ground that A.M. had made that allegation to the journalist and that it was in fact untrue . The newspaper published the allegation without verifying the information and the claimant was only contacted and asked for his comments on the allegations the following day .

ORG considered that in a libel case , verification of a third party ’s allegation would ordinarily be appropriate and perhaps even essential before the defence of qualified privilege could be relied upon . However , the public was entitled to be informed of a political dispute which was being fully , fairly and disinterestedly reported without having to wait for the publisher , following an attempt at verification , to commit himself to CARDINAL side or the other . Lord Justice PERSON ( as he then was ) noted :

“ CARDINAL . ... To my mind [ the newspaper ] was entitled in this case to publish without attempting verification . Indeed in the present context verification could even be thought inconsistent with the objective reporting of the dispute ...

I am not , of course , saying that verification ( or at least an attempt at verification ) of a third party ’s allegations will not ordinarily be appropriate and perhaps even essential ...

I am saying , however , that there will be circumstances where ... , in short , both sides to a political dispute are being fully , fairly and disinterestedly reported in their respective allegations and responses . In this situation it seems to me that the public is entitled to be informed of such a dispute without having to wait for the publisher , following an attempt at verification , to commit himself to CARDINAL side or the other . ”


Mr PERSON , a NORP national , lives off private means and resides at Courbevoie ( ORG ) . He formerly practised as a lawyer .

On DATE the ORG convicted him of fraud and sentenced him to a suspended term of CARDINAL months’ imprisonment , combined with an order ( mise à l’épreuve ) requiring him , inter alia , to compensate the victim for the damage which he had sustained .

The applicant appealed immediately to ORG , which , giving judgment on DATE in Mr ORG ’s presence , upheld the lower court ’s guilty verdict . On the other hand , it deferred pronouncement of sentence until DATE as the accused had undertaken to reimburse the victim within DATE if the court were to find him guilty . This aspect of the proceedings is not in issue . The typed text of the judgment was filed with the registry on DATE as its delivery .

DATE Mr Melin lodged an appeal on points of law against ORG judgment with the latter ’s registry ( Article CARDINAL of LAW ) . He stated that he reserved the right " to put forward any other relevant ground once he had received the certified copy of the decision in question " .

According to the applicant , he requested a copy of the judgment on the same occasion . A registry official allegedly took down his address and the case references , so as to be able to send him CARDINAL in return for a MONEY fiscal stamp .

The Government maintain that there were CARDINAL possibilities : either the applicant had not requested a copy and could not therefore be surprised at not receiving one ; or he had in fact asked for CARDINAL , in which case a copy had undoubtedly been sent to him .

On DATE the appeal file reached the registry of ORG . DATE , on DATE , ORG dismissed the appeal because no grounds had been put forward and because the contested judgment did not disclose any procedural defect . This decision was notified to Mr Melin on DATE and recorded that the party seeking damages had submitted a memorial .

In a letter of DATE to the President of ORG , the applicant explained that he had been unable to submit a memorial because he had not had available to him the text of the judgment of DATE ; in addition he complained that the judge - rapporteur had failed to communicate to him a time - limit for the submission of a memorial .

On DATE the Chief Registrar replied to him that , as the judgment of ORG was final , he could not appeal against it .

Throughout these various proceedings Mr ORG had conducted his own defence , though he had been assisted by a lawyer at first instance .

The main provisions of LAW referred to in this case are as follows :

" Every judgment shall include a statement of its reasons and an operative part .

The operative part shall record the offences of which the accused have been found guilty or in respect of which they have been held liable , the sentence pronounced , the laws applied and the orders made with regard to civil claims .

The judgment shall be read out by the president . "

Amended by LAW . DATE of DATE , which came into force on DATE , this provision is now worded as follows :

The reasons shall constitute the basis of the decision .

The judgment shall be read out by the president or by CARDINAL of the judges ; in so doing the president or judge may confine himself to the operative part ... "

After it has been signed by the president and the registrar , the original copy shall be lodged with the court registry not DATE after the delivery of the judgment . The fact that it has been so lodged shall be recorded in the register kept in the registry specifically for this purpose .

According to ORG case - law , failure to comply with the formalities laid down in Article CARDINAL does not entail the nullity of the judgment in issue . Thus the belated lodging of the original copy of a judgment can not render the judgment void where no prejudice has ensued for the applicant ( ORG , CARDINAL DATE , Bulletin criminel no . CARDINAL ) .

" The rules laid down for the criminal courts shall apply in the courts of appeal , subject to the provisions set out below . "

" Service of decisions , where such service is necessary , shall be effected at the request of the prosecuting authority or of the party claiming damages . "

" The prosecuting authority and all the parties shall have DATE in which to appeal to ORG after the delivery of the impugned judgment .

" An appellant on points of law may lodge a memorial , bearing his signature and setting out the grounds of his appeal , with the registry of the court from whose judgment he is appealing , either when he gives notice of appeal or within DATE . The registrar shall issue him with a receipt . "

" After expiry of this time - limit , a convicted appellant may transmit his memorial directly to ORG ; the other parties may not avail themselves of this provision without the services of a lawyer who is a member of ORG .

" Where CARDINAL or more lawyers have been instructed , the judge- rapporteur shall set down a time - limit for the memorials to be filed with the registrar of ORG . "

" The memorials shall set out the grounds of appeal and cite the legal provisions whose violation is alleged .

A fiscal stamp must be affixed , except where the appellant has been sentenced after conviction of a serious criminal offence ( crime ) .

They must be lodged within the prescribed time - limit . No additional pleading may be joined thereto after the judge- rapporteur has filed his report . If a memorial setting out additional grounds is lodged belatedly , it may be declared inadmissible . "

" In cases concerning any category of criminal offence , ORG may give judgment on the appeal on points of law immediately after expiry of a period of DATE , which period begins to run on the date on which ORG receives the file .


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in the village of GPE , GPE district .

On DATE the biggest NORP DATE newspaper , ORG , published a front page article entitled “ LOC villages paralysed by the fear of death : residents of a remote NORP area shackled by the AIDS threat ” ( LOC kaimus paralyžavo mirties baimė : nuošalios NORP vietovės gyventojai atsidūrė AIDS grėsmės gniaužtuose ) . The following statements of particular concern to the applicant were made in the article :

“ Notoriously promiscuous DATE PERSON is already sick with this fatal disease ...

An HIV - positive person lives in a village in GPE area . This [ is ] PERSON , an unmarried mother of CARDINAL children ...

PERSON was infected with HIV by drug users who come to visit her from GPE ...

A man who had wandered in from somewhere lived in ORG house for DATE . After some time he went away and left “ a present ” [ reference to HIV ] for the woman ...

Why is there a great demand for condoms – in the PERSON village there lives an HIV - positive person . It is an unmarried mother of CARDINAL children , PERSON ... the women in nearby villages are afraid that their husbands will bring the deadly virus home ...

ORG was very promiscuous . She was always looking for men and used to find them easily ...

Medics at the LOC hospital confirmed that PERSON is HIV - positive . The woman was taken to hospital with tuberculosis . Blood tests revealed that she was HIV - positive ...

PERSON , former partner of PERSON ... did not hide the fact that he had lived with PERSON for DATE and they had had intercourse without condoms ...

When [ G. Biriuk ] was placed in hospital , people said that she looked scary , that she was wizened and therefore was going to die . But the woman recovered ...

The woman [ G. Biriuk ] has already been diagnosed with AIDS - this is the last stage of the infection . The disease can last from DATE but finally ends with death . ”

The applicant instituted proceedings in the GPE City Third ORG , suing the newspaper for non - pecuniary damages in the amount of CARDINAL NORP litai ( ORG , or MONEY ( ORG ) ) for a breach of her right to privacy . She referred , inter alia , to LAW .

On DATE the court ruled in favour of the applicant . The court found that the information about the applicant ’s private life had been collected and published without her consent . The data about her private life did not correspond to any legitimate public interest . The article had been published on the front page of the newspaper as the sensation of DATE , with the aim of increasing sales . ORG noted that publication had humiliated her and caused her significant non - pecuniary damage . The court concluded that , by printing the article and doing so in a humiliating manner , the newspaper had deliberately sought the negative consequences or had intentionally allowed for such consequences . Taking into account the above considerations , the court applied LAW on LAW to the Public , multiplied the statutory sum of LTL CARDINAL ( about EUR CARDINAL ) by CARDINAL , and awarded the applicant LTL CARDINAL ( about ORG CARDINAL ) in compensation for non - pecuniary damage .

The applicant appealed to ORG , requesting the maximum award under LAW of the said PERSON , namely ORG . On DATE the appellate court reduced the award to LTL CARDINAL ( about EUR CARDINAL ) . It reasoned that the applicant had not proved that the newspaper had published the information about her intentionally and that the first - instance court had had no grounds to triple the statutory sum .

On DATE ORG upheld the appellate court ’s decision . It stated that an award in excess of LTL CARDINAL,CARDINAL under LAW on ORG to the Public could only be granted if it had been established that the information had been published intentionally . The court agreed with the reasoning of the appellate court that , for a breach of privacy , intent was to be regarded as proven if the facts about someone ’s private life were disseminated with the purpose of degrading that person ( siekant jį sumenkinti ) . ORG held , inter alia , as follows :

“ It is to be stressed that the problem of the interaction between persons who are sick with AIDS and the others is relevant and should be discussed . The relations of the sick with the persons who live nearby are based on the knowledge about the disease we have DATE and on the understanding of the related dangers . The nature of the disease and the known data about it reasonably raise concern on the part of the people who live in close proximity , to many of whom this question becomes pertinent not from curiosity , but from concern for their personal safety . These are significant arguments , which demonstrate great concern in society , and which attest to the relevance of the question . It should be taken into account that persons who live in proximity [ to the applicant ] have expressed concern for their safety , which is endangered by the [ applicant ’s ] behaviour , which does not always meet moral standards . In such circumstances the publication of data which breaches a [ person ’s ] privacy , even though such publication violates the [ legal ] norms which protect privacy , can not be regarded as an end in itself or intentional , which would be a basis for the application of much stricter liability . [ Therefore ] the amount of LTL CARDINAL as compensation for non - pecuniary damage is considered sufficient ” .

Relying on the foregoing considerations , ORG dismissed the applicant ’s cassation appeal .

Article CARDINAL of the LAW of GPE provides as relevant :

“ The private life of a human being shall be inviolable ... The law and the courts shall protect everyone from arbitrary or unlawful interference in his private and family life , or from encroachment upon his honour and dignity . “

DATE LAW provides that compensation for material and non - pecuniary damage suffered by a person shall be established by law .

According to LAW applicable at the material time , concerning compensation for non - pecuniary damage :

“ Mass media , organisations or persons who publish false information degrading the honour and dignity of a person , and also information about a person ’s private life without the consent of that person , shall pay compensation for non - pecuniary damage . The courts will assess the amount of the compensation , CARDINAL litai .

In assessing monetary compensation for the non - pecuniary damage caused , the courts shall take into consideration the financial status of the person who has caused the damage , the gravity and consequences of the violation and other circumstances important to the case . ”

Article CARDINAL of LAW , concerning non - pecuniary damage and in force since DATE , reads as follows :

“ CARDINAL . Non - pecuniary damage shall be deemed to be a person ’s suffering , emotional experiences , inconvenience , mental shock , emotional depression , humiliation , deterioration of reputation , diminution of opportunities to associate with others , and so on , evaluated by a court in terms of money .

Non - pecuniary damage shall be compensated only in cases provided for by laws . Non - pecuniary damage shall be compensated in all cases where it has been incurred due to crime , health impairment or deprivation of life , as well as in other cases provided for by laws . The courts , in assessing the amount of non - pecuniary damage , shall take into consideration the consequences of the damage sustained , the gravity of the fault of the person by whom the damage is caused , his financial status , the amount of pecuniary damage sustained by the aggrieved person , and any other circumstances of importance for the case , as well as the criteria of good faith , justice and reasonableness . ”

The relevant provisions of the PERSON on the Provision of Information to the Public at the material time read as follows :

“ CARDINAL . In producing and disseminating public information , it is mandatory to ensure a person ’s right to have his personal and family life respected .

Information about a person ’s private life may be published , with the exception of the instances stipulated in paragraph CARDINAL of this LAW , only with the consent of that person and if publication of the information does not cause undue harm to that individual .

Information concerning private life may be published without the person ’s consent in those cases when publication of the information does not cause harm to the person or when the information assists in uncovering violations of the law or crimes , as well as when the information is presented in the examination of the case in an open court process . ... ”

“ CARDINAL . A producer and ( or ) disseminator of public information who publishes information about an individual ’s private life ... without the natural person ’s consent , also a producer who publishes false information degrading to the honour and dignity of the person , shall pay compensation for non - pecuniary damage to that person in a manner set forth by law . The amount of the compensation for non - pecuniary damage may not be in excess of LTL CARDINAL , except for cases when the court establishes that false information degrading the honour and dignity of a person has been published intentionally . In such cases the amount may , by a decision of a court , be increased , but not more than fivefold . In each case the amount awarded to the plaintiff may not be in excess of PERCENT of the DATE income of the publisher and ( or ) disseminator of public information . ...

In determining the amount of monetary compensation for non - pecuniary damage , the courts shall take into account the financial circumstances of the person who caused the damage , the gravity of the offence , its consequences and other significant circumstances . ... ”

Article CARDINAL of the Law on ORG , restricting the disclosure of information about a person ’s health , at the material time provided as follows :

“ CARDINAL . Restriction on the disclosure of information about the state of health of a person is intended to guarantee the inviolability of his private life and state of health .

It shall be forbidden to make public in the mass media information about the state of health of a person without his written authorisation ...

Individual or public health care specialists shall be restricted ... from violating the confidentiality of the information about an individual ’s NORP private life or personal health ... which they have acquired while performing professional duties . ”

The Ruling of the Senate of Judges of ORG DATE no . CARDINAL “ On the application of Articles CARDINAL and CARDINAL of LAW and the PERSON on the Provision of Information to the Public in the case - law of the courts examining civil cases on the protection of honour and dignity ” , in so far as relevant , provided as follows :

“ CARDINAL . ... Privacy of the person should be protected when it is established that information about a person ’s private life has been disseminated without his or her consent and in the absence of lawful public interest . Lawful public interest is to be understood as the right of society to receive information about the private life of a person ... where it is necessary to protect the rights and freedoms of others from negative impact . The rights of the person are protected irrespective of whether the disseminated information degrades his or her honour and dignity . ”

The Ruling further stipulated that the producer or disseminator of public information who publishes information about an individual ’s private life without his or her consent must compensate for the non - pecuniary damage caused . When assessing the monetary compensation for such damage , the courts should take into consideration the guilt of the defendant , his or her behaviour after the dissemination of the information , the negative impact on the plaintiff ’s professional or social life and the form and manner in which the information was disseminated , as well as its content and other relevant circumstances . The monetary compensation could not exceed the limits provided by LAW and LAW to the Public .

On DATE ORG of ORG adopted LAW , containing a LAW , the relevant part of which reads as follows :

“ CARDINAL . There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by LAW . The exercise of the former right must not be allowed to destroy the existence of the latter .

The right to privacy consists essentially in the right to live one ’s own life with a minimum of interference . It concerns private , family and home life , physical and moral integrity , honour and reputation , avoidance of being placed in a false light , non - revelation of irrelevant and embarrassing facts ... protection from disclosure of information given or received by the individual confidentially ...

The right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media . National legislations should comprise provisions guaranteeing this protection . ”

Recommendation no . R ( CARDINAL ) CARDINAL on “ The ethical issues of HIV infection in the health care and social settings ” , adopted by ORG on DATE reads , in so far as relevant to the present case , as follows :

“ Public health authorities are recommended to :

in relation to reporting of cases :

ensure that the reporting of AIDS cases ... is used for epidemiological purposes only and therefore carried out in strict compliance with appropriate confidentiality regulations and in particular that data is transmitted on a non - identifiable basis to avoid any possible discriminatory use of sensitive health related data , to avoid discouraging individuals from seeking voluntary testing ,

in relation to the patient - health care worker relationship :

strongly support respect for confidentiality , if necessary by introducing specific policies and by promoting educational programs for health care workers to clarify confidentiality issues in relation to HIV infection . ”


Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

On DATE the GPE police opened a criminal investigation into the theft of MONEY ( CARDINAL million US dollars ) from ORG through the use of forged credit notes of ORG .

On DATE the applicant was arrested at FAC on his arrival from GPE and taken into custody . On CARDINAL and DATE the applicant confessed to having conspired with Mr GPE , director of a NORP commercial bank , to steal the money .

On DATE the applicant was released from custody .

On DATE the applicant was charged with large - scale fraud , an offence under LAW of GPE ( RSFSR ) Criminal Code , and ordered to be detained pending trial . As by that time the applicant had fled from GPE , his name was placed on the list of fugitives from justice .

On DATE the applicant ’s name was placed on the ORG wanted list . On DATE the NORP police arrested the applicant in GPE , GPE , with a view to extraditing him .

Upon receipt of the documents supporting the extradition request , the NORP authorities decided on CARDINAL DATE to extradite the applicant .

On DATE the applicant was extradited to GPE , where he was placed in detention facility IZ-CARDINAL/CARDINAL ( “ PERSON ” ) .

On DATE the applicant ’s counsel asked ORG of GPE to release the applicant . She submitted , in particular , that he had been detained in GPE on the basis of the arrest warrant of DATE and had remained in custody for DATE . In GPE , his country of nationality , the criminal proceedings against him had been discontinued on the ground that no criminal offence had been committed . In any event , after CARDINAL years’ investigation the investigators had gathered all the available evidence including statements by witnesses , and the applicant could not therefore interfere with the establishment of the truth . Finally , his release was necessary on medical grounds because his health had seriously deteriorated in detention .

On DATE and DATE the hearings listed before ORG were adjourned because the applicant had not been brought to the court .

On DATE a deputy Prosecutor General of GPE authorised an extension of the applicant ’s detention pending trial until DATE , that is , for a total of DATE from the date of his initial detention in GPE . The continued detention was justified by reference to the gravity of the offence , the risk that the applicant might abscond and the international obligations undertaken by the NORP authorities in the extradition proceedings .

On DATE the Preobrazhenskiy ORG took statements from the applicant and his lawyer and from the prosecutor and held that the detention had been imposed and subsequently extended on valid grounds and in compliance with LAW . Accordingly , no grounds for applying a different measure of restraint had been made out .

On DATE ORG upheld the decision of DATE . The court reiterated in general terms the finding that the applicant ’s detention was lawful .

On DATE the Prosecutor General authorised an extension of the applicant ’s detention pending trial until DATE , that is , for a total of DATE . The applicant submitted that no separate extension order had been issued and that the new authorisation had been printed on top of the authorisation of CARDINAL DATE . He further submitted that he had not been notified of the extension until DATE .

On DATE the applicant ’s counsel challenged the extension before ORG . She submitted , in particular , that there was no indication that the applicant had committed an offence on NORP territory ; that the authorised period of his detention had expired on DATE , whereas the applicant had not been notified of the subsequent extension until DATE ; and that there was no actual risk that the applicant would abscond or interfere with the investigation .

On DATE ORG dismissed the challenge . It held that there were no grounds for lifting or varying the preventive measure imposed on the applicant , as the detention period had been extended in accordance with the law . The court found that it was not competent to review the lawfulness of , and grounds for , the applicant ’s placement into custody because that issue had already been determined in the decision of DATE ( see paragraph CARDINAL above ) .

On DATE the applicant ’s lawyers lodged an appeal . They submitted , in particular , that domestic law permitted the extension of detention beyond the ninemonth period only in “ exceptional circumstances ” , whereas in the present case neither the Prosecutor General , who had authorised the extension to DATE , nor ORG that had reviewed his decision , had pointed to any such circumstance .

On DATE ORG upheld the decision of CARDINAL DATE . The court reiterated that the detention period had been extended lawfully because the applicant had been charged with a serious offence . No other reasons for the continued detention were given .

On DATE a new charge was added : the applicant was accused of forging and making use of a ORG document , an offence under LAW .

On DATE ORG decided to sever the case against the applicant from that against Mr Smolenskiy , the applicant ’s co - accused .

On DATE the case file and the bill of indictment were deposited with the ORG of GPE in preparation for trial .

On DATE ORG set the case down for hearing on DATE . The hearing was subsequently adjourned CARDINAL times .

On DATE ORG found that the applicant ’s right to consult his lawyers had been unlawfully restricted , with the result that the defence ’s requests for discontinuation of the proceedings , the applicant ’s release , the summoning of additional witnesses and the exclusion of certain evidence had not been examined . The court referred the case back to the pre - trial stage ( стадия назначения к слушанию ) .

On DATE the ORG found that the case against the applicant had been unlawfully severed from the case against Mr Smolenskiy . The court considered that the prosecution should complete the investigation into Mr LOC offences and that the charges against both co - defendants should be examined together . The court ordered the case to be referred back for additional investigation . The prosecution appealed against the decision .

On DATE the criminal proceedings against Mr Smolenskiy were discontinued for lack of evidence .

On DATE ORG upheld the decision of DATE . The court also established other procedural defects : in particular , it ordered that the lawfulness of the discontinuation of criminal proceedings against Mr Smolenskiy be reviewed and that the applicant ’s bill of indictment be updated accordingly .

On DATE the applicant ’s case file was returned to ORG .

On DATE ORG lodged an application for supervisory review ( протест в порядке надзора ) against the decisions of DATE and DATE with the ORG of ORG . The prosecution claimed that , in referring the case back for additional investigation , the courts had failed to take into account the imminent expiry of the authorised detention period and had also violated the applicant ’s right to have the charge against him determined within a reasonable time .

In DATE the applicant ’s lawyer complained about the unlawfulness of her client ’s continued detention to the director of the remand centre where the applicant was being held , the deputy Minister of ORG in charge of ORG ( ORG Министерства юстиции ORG ) , the Minister of ORG , the acting Prosecutor General and ORG ( on DATE ) . She requested the applicant ’s release , claiming that his detention after DATE had been unlawful as no further extension had been authorised .

On DATE a senior legal adviser from ORG informed ORG that from the date on which the deputy ORG had lodged an application for supervisory review the applicant ’s detention had been “ accounted for by the GPE City Court ” . The authorities of the remand centre relayed this information to the applicant ’s lawyer .

On DATE the Minister of ORG sent a letter to the acting Prosecutor General , the relevant part of which read as follows :

“ ... on DATE the case file was received by ORG from ORG of GPE ... [ The applicant ’s ] detention period expired on DATE .

According to the information from ORG , the [ the applicant ’s ] detention period was suspended in connection with the lodging of the application for supervisory review ... and the transfer of the applicant to ORG .

I consider that this approach by the officials of ORG is incompatible with LAW and its criminal - procedure laws .

... For instance , the criminal - procedure laws do not provide for suspension of the renewed detention period pending examination of an application for supervisory review of the decision to refer the case back for additional investigation ... This means that the examination of final judgments , decisions or rulings by means of [ supervisory ] review does not suspend either the enforcement of the judgment or the [ additional ] pre - trial investigation if the case has been referred back for additional investigation [ by a court decision ] .

... Accordingly , in the present case , [ the lodging of an application for supervisory review ] suspended not the detention period , but the additional investigation , as it is inconceivable that suspension of the detention period in such a case would be conducive to the implementation of a citizen ’s right to liberty and personal integrity enshrined in LAW .

... In this connection the legislature made provision , in LAW , for one and CARDINAL option for extending the detention period if a case is referred back for additional investigation , namely that such extension must be authorised by the prosecutor supervising the investigation . ”

The Minister of ORG invited the Prosecutor General to report within DATE on whether the applicant ’s detention pending trial had been extended as provided for in LAW .

On DATE a deputy Prosecutor General wrote to the Minister of ORG stating that his office had received the case file on DATE and that he had lodged an application for supervisory review without “ having taken on the case ” ( “ не принимая дело к своему производству ” ) . The letter did not refer to any extension of the applicant ’s detention .

On DATE Mr L. , the prosecutor supervising the lawfulness of the enforcement of criminal penalties , sent a faxed request to the remand centre where the applicant was being held , requesting that the applicant should not be released until ORG had examined the application for supervisory review .

On DATE the ORG of ORG quashed the decisions of DATE and DATE on procedural grounds and remitted the case to ORG for examination on the merits by a differently composed bench .

On DATE a judge of ORG discontinued the proceedings in connection with the complaint concerning the unlawfulness of the applicant ’s detention because “ on DATE the [ applicant ’s ] case had been referred to ORG for trial ” .

On DATE the case file was returned to ORG . The commencement of the trial was scheduled for DATE but was adjourned on QUANTITY occasions because certain documents from ORG were missing or because the presiding judge was involved in other proceedings .

On DATE ORG ordered the case to be referred back to ORG for additional investigation . It held that the preventive measure imposed on the applicant ( detention pending trial ) “ should remain unchanged ” .

On DATE ORG of ORG resumed the investigation . On DATE the applicant was released subject to an undertaking that he would not leave the city .

In DATE the applicant applied for permission to return home . After permission had been granted , he left for GPE on DATE .

On DATE and DATE ORG of ORG asked ORG to extend the authorised term of the investigation . On DATE and DATE a deputy ORG refused a further extension because “ the applicant ’s whereabouts could not be established ” .

On DATE and DATE the applicant ’s lawyers asked the investigators to inform them of the situation with regard to the criminal proceedings against the applicant ; their requests received no response .

DATE . On DATE the applicant ’s lawyers also requested the prosecution to discontinue the criminal case against the applicant , referring to a decision of DATE by the GPE prosecutors to discontinue the criminal proceedings . On DATE the acting head of the department for supervision of investigations of particularly serious cases in ORG refused their request on the ground that the offence had been committed on NORP territory and that there were no legal grounds for discontinuing the proceedings against the applicant .

According to the ORG , the criminal proceedings against the applicant in GPE had been discontinued on DATE by a decision of ORG of ORG , on the ground that the applicant ’s involvement in the offence could not be proved . The decision indicated , in particular , that “ further proceedings in the case [ had been ] impossible because ORG [ had ] refused a further extension of the authorised investigation period ” . On an unspecified date the investigator had allegedly informed the applicant of that decision by telephone , but had been unable to send a copy of the decision to the applicant because he had not known his address . In DATE the same information had allegedly been communicated to PERSON , the applicant ’s lawyer .

On DATE PERSON asked ORG of ORG for a copy of the decision to discontinue the criminal proceedings against the applicant . She indicated that she had learnt of its existence in DATE , during a conversation with a senior investigator dealing with particularly serious cases in ORG .

On DATE the deputy head of ORG of ORG replied to her that “ on DATE case file no . DATE [ had been ] sent to ORG and [ had ] not yet been returned to ORG of ORG ; the documents [ could not ] therefore be provided ” .

Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) included an undertaking not to leave a town or region , personal surety , bail and detention pending trial ( LAW ) . A decision ordering detention pending trial could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

At the material time DATE before the amendments of DATE detention pending trial was authorised if the accused had been charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case . If the accused had been charged with a serious or particularly serious criminal offence – a category which included large - scale fraud – he could be remanded in custody on the sole ground of “ the dangerous nature of the crime ” ( Article CARDINAL ) .

The detainee or his representative could challenge the detention order before a court . The judge was required to review the lawfulness of , and grounds for , the order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee ’s counsel or representative . The judge could either dismiss the challenge or set aside the pre - trial detention and order the detainee ’s release ( LAW ) .

After arrest the suspect was placed in custody “ pending investigation ” . The maximum permitted period of detention “ pending investigation ” was DATE , but it could be extended DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels . No extension of detention “ pending investigation ” was possible beyond DATE . The period of detention “ pending investigation ” was calculated up to DATE when the prosecutor sent the case to the trial court ( Article CARDINAL ) .

From the date on which the prosecutor forwarded the case to the trial court , the defendant ’s detention was “ before the court ” ( or “ during trial ” ) . Within DATE of receipt of the case file ( if the defendant was in custody ) , the judge was required either ( CARDINAL ) to set the trial date ; ( CARDINAL ) to refer the case back for additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court with jurisdiction to hear it ( Article CARDINAL ) . Upon receipt of the case file , the judge had to determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL ) and to rule on any application by the defendant for release ( LAW ) .

The trial court could refer the case back for additional investigation if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant ’s detention was again classified as “ pending investigation ” and the relevant time - limit continued to apply . If , however , the case was referred back for additional investigation but the investigators had already used up all the time authorised for detention “ pending investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from the date on which he received the case file . Subsequent extensions could be granted only if the detention “ pending investigation ” had not exceeded DATE ( Article CARDINAL ) .

If the authorised detention period had expired and no information about an extension order had been communicated to the director of the remand centre , the latter had to release the detainee by his own decision ( LAW ) . A prosecutor and his deputy had a duty to release anyone who had been detained unlawfully or after expiry of the detention period authorised by law or by a judicial decision ( LAW and also section CARDINAL § CARDINAL of the Federal Law on ORG in GPE , no . CARDINAL-I of DATE ) .

The investigator could issue a reasoned decision discontinuing the criminal proceedings , which he had to sign and date . A copy of the decision had to be sent to the prosecutor . At the same time the suspect and the victim had to be informed of the decision in writing and have the procedure for lodging an appeal explained to them ( Article CARDINAL ) .