The applicant , ORG , is a private limited company , which is domiciled in ORG , GPE . It is represented before the Court by PERSON , a lawyer practising in GPE .

The applicant company is a television producer . In DATE its documentary unit called “ FakCARDINALeren ” decided to produce a programme investigating paedophilia in GPE which was to be broadcast on national television . In this connection the journalists employed by the applicant company unsuccessfully sought permission from an association named “ The Paedophile Association ” to attend its meetings or conduct interviews with its members .

The said association was formed “ to work toward the development of paedophiles’ sense of responsibility towards children ” and it holds regular meetings , but they are generally closed to the public and the media . Its members include convicted sexual offenders . The association was not illegal under NORP law , a fact which had been the subject of public debate .

Wishing to probe into the Paedophile Association ’s activities , a journalist , ORG , using the pseudonym “ PERSON ” , went undercover , posing as a member . In the course of his DATE long membership “ PERSON ” participated in quasi - public meetings , was invited to so - called “ private meetings ” and was befriended by CARDINAL other members “ Mogens ” and “ Per ” . These CARDINAL made many incriminating statements regarding the realities of paedophilia in both GPE and GPE , including advice on how to induce a child to chat over the internet , comments about how difficult it was to procure sexual acts from children in GPE , and how easy on the other hand it was to procure children in LOC and GPE . “ Mogens ” recommended to “ PERSON ” a specific hotel , run by a NORP paedophile in GPE , at which “ Mogens ” had had sex with NORP boys in the past . ORG visited the hotel in GPE and interviewed an NORP boy about his knowledge of “ Mogens ” . Also , in front of the hotel , a young NORP boy was offering sexual services . ORG made numerous notes and camera recordings , most of them hidden .

Before the programme was to be broadcast on DATE , ORG and its members who had been recorded by the hidden camera were contacted by the applicant company and given assurance that they would remain anonymous , when the documentary was shown . Thus , false names would be used and the ORG faces and voices would be blurred .

The association unsuccessfully sought an injunction to prevent the broadcast of the programme .

DATE after the broadcast of the programme , on DATE , the person named “ Mogens ” was arrested and charged with sexual offences under sections CARDINAL ( CARDINAL ) taken together with sections CARDINAL and CARDINAL of LAW ( PERSON ) . ORG ( Københavns Politi ) had taken an interest in him before the broadcast of the programme and could therefore identify him . Their request that he be detained on remand was refused by ORG , which found no specific reason to believe that “ Mogens ” would impede the investigation , notably because the information leading to the charges against him on the whole appeared from the programme . Thus , “ Mogens ” was released on DATE . During their further investigation , which also included the person in the programme named “ Per ” , ORG requested that the un - shown portions of the recordings made by ORG be disclosed . ORG , and the editor and head of the applicant company ’s documentary unit , refused the request following which the public prosecution requested a court order compelling the applicant company to hand over the un - shown footage to the police .

By decision of CARDINAL DATE ORG ( PERSON ) refused to grant the requested court order having regard to the need of the media to be able to protect their sources . Also , it found that the raw material had little or no evidential value , as it essentially covered the same matter as the broadcast footage . Moreover , it referred to section CARDINAL of ORG ( Retsplejeloven ) and LAW .

On appeal , the decision was upheld on DATE by ORG of Eastern Denmark ( PERSON ) .

Having been granted leave to appeal , the public prosecution brought the case before ORG ( Højesteret ) , which on DATE found against the applicant company , so that the latter was compelled to hand over limited specified unedited footage and notes which related solely to “ Mogens ” and his activities in GPE and GPE , including the recordings made outside the NORP hotel of the NORP boy . However , the recordings and notes were exempted from the order whenever the handover would entail a risk of revealing the identity of any of CARDINAL named persons , namely “ the victim [ not the NORP boy ] , the police officer and the hotel manager ’s mother ” . The remainder of the unedited footage was to remain protected . In its decision ORG stated as follows :

“ ORG agrees that presumably the non - edited recordings and the notes made by the journalist JB may assist the investigation and production of evidence in the case against “ Mogens ” and that therefore they may serve as evidence within the meaning of section CARDINAL , subsection CARDINAL , of ORG .

It is undisputed that in connection with the recording , CARDINAL of the participants - the victim , the police officer and the hotel manager ’s mother - were promised that they could participate without the possibility of being identified , thus their identities are protected by the right of exemption from the duty to testify as a witness , pursuant to section CARDINAL , subsection ORG ) first sentence , of ORG .

The charge against “ Mogens ” concerns a criminal offence which is punishable with CARDINAL years’ imprisonment or more . The charge includes several instances of sexual relations other than intercourse , over a long time , with boys younger than DATE , and ORG finds that the case concerns a criminal act , which is of a serious nature . However , having regard to the information about the content of the material which is related to the CARDINAL participants mentioned [ the victim , the police officer and the hotel manager ’s mother ] compared with the investigation possibilities otherwise available , it can not be presumed that the material is of vital importance for resolving the case . In these circumstances , ORG agrees that the conditions stated in section CARDINAL , subsection CARDINAL , and section CARDINAL , subsection CARDINAL , of ORG are not fulfilled for issuing an order [ to compel the applicant company to disclose or hand over the material which is related to those CARDINAL participants ] contrary to the right of exemption from the duty to give evidence .

The recordings of the members of ORG during its meetings and of “ Mogens ” and “ Per ” were done with a hidden camera . Hence a promise of anonymity could only be given after the recordings . The media ’s extensive privilege of protecting their sources by virtue of section CARDINAL of ORG has been introduced in consideration of the sources’ and the participants’ opportunity to exercise the freedom of speech , since the promise of anonymity may be a vital premise for supplying a journalist with information . Thus , the main purpose of the rules concerning the right of exemption from the duty to testify as a witness is to protect persons who , relying on a promise of anonymity , agree to participate in a programme . Even though , in compliance with the rules on press ethics and the use of a hidden camera , [ the applicant company ] has subsequently given the participants a promise and has kept this promise in the programme , section CARDINAL , subsection ORG ) , of ORG can not , according to its wording and purpose , extend to a right of exemption from the duty to testify as a witness as regards the recordings in question . Nor can section CARDINAL , subsection CARDINAL ) .

The programme contains recordings made outside an NORP hotel of a boy with whom “ ORG ” allegedly had had [ sexual ] relations . The boy ’s name does not appear and reasonable precautions have been taken to cover his identity , but this is not sufficient to establish a right of exemption from the duty to give evidence according to section CARDINAL , subsection CARDINAL , of ORG .

A court order pursuant to section CARDINAL of ORG may not be issued if it is disproportionate to the importance of the case and the disadvantage which such a ruling might entail ( section CARDINAL , subsection CARDINAL , of ORG ) . In this balancing exercise , regard must be had to the nature of the offence , the value which the items may have for the investigation of the case , and considerations for the media ’s working conditions as regards LAW . In these circumstances , ORG finds that a court order should be limited to those recordings in which “ Mogens ” or the NORP boy participates , and ORG ’s notes which relate thereto .

... [ ORG ] orders that [ the applicant company ] hand over those parts of the non - edited tapes with recording for the programme “ Danish Paedophiles ” in which “ Mogens ” or the NORP boy participates . Also , [ the applicant company ] must hand over notes made by the journalist JB in connection with the said recordings . However , the recordings and notes may be exempted from the handover order whenever that would entail a risk of revealing the identity of the victim , the police officer or the hotel manager ’s mother . ”

On DATE ORG decided to discontinue its investigation against “ Mogens ” and drop the charges against him .

The provisions of ORG ( Retsplejeloven ) , in so far as relevant , read as follows :

Editors and editorial staff employed by a publication covered by LAW ( PERSON ) are under no obligation to testify as a witness about :

the identity of the source of information or the author of an article , or the person who has taken a photograph or procured another figurative production . If publication is made , it is a condition for exemption from the duty to testify as a witness that the source , author , photographer or producer is not identified in the publication .

the identity of a person whose picture is shown , or who is the subject of conversation , when such persons have been promised anonymity . If publication is made , exemption from the duty to testify as a witness applies as long as the identity [ of the relevant persons ] does not appear from the text .

Editors and editorial staff employed by a radio or a television enterprise covered by LAW are under no obligation to testify as a witness about :

the identity of the source of information or the author of a work , or the person who has taken a photograph or procured another figurative production . If the information , work etc . is broadcast , it is a condition for exemption from the duty to testify as a witness that the source , author , photographer or producer has not been identified in the programme .

the identity of participants who were promised that they could participate without the possibility of being identified . If the programme is broadcast , it is a condition for exemption from the duty to testify as a witness that the name of the relevant persons does not appear , and that reasonable precautions have been taken to conceal their identity .

If the case concerns a criminal act of a serious nature , which according to the law is punishable with CARDINAL years’ imprisonment or more , the court may compel the persons mentioned under subsections DATE to testify as witnesses , if such testimony is considered to be of vital importance for resolving the case , and the interest in resolving the case obviously overrides the mass media ’s need to protect their sources .

CARDINAL ....

As part of the investigation of a criminal offence , subject to public prosecution , any person who is not a suspect may be compelled to disclose or hand over items ( edition ) if there is reason to assume that such an item , which that person has possession of , may serve as evidence , ought to be seized , or has been removed during the criminal act from someone who may claim it back ...

An order to disclose or hand over items may not be issued if this would result in disclosure of matters about which the person would be excluded from or exempted from testifying as a witness .

A seizure may not be made , nor may a disclosure or a handover be ordered , if that would be disproportionate to the importance of the case and the loss and disadvantage which such a ruling presumably may entail .

Several international instruments concern the protection of journalistic sources , among others , ORG , adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) and ORG on ORG by ORG , DATE , ORG of ORG . C CARDINAL/CARDINAL ) .

Moreover , Recommendation No . R(CARDINAL ) CARDINAL on the right of journalists not to disclose their sources of information was adopted by ORG DATE and stated , in so far as relevant :

[ ORG ] Recommends to the governments of member GPE :

to implement in their domestic law and practice the principles appended to this recommendation ,

to disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and

to bring them in particular to the attention of public authorities , police authorities and the judiciary as well as to make them available to journalists , the media and their professional organisations .

Appendix to Recommendation No . R ( DATE ) CARDINAL

Principles concerning the right of journalists not to disclose their sources of information

Definitions

For the purposes of this Recommendation :

a. the term " journalist " means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication ;

b. the term " information " means any statement of fact , opinion or idea in the form of text , sound and/or picture ;

c. the term " source " means any person who provides information to a journalist ;

d. the term " information identifying a source " means , as far as this is likely to lead to the identification of a source :

i. the name and personal data as well as voice and image of a source , ii . the factual circumstances of acquiring information from a source by a journalist , iii . the unpublished content of the information provided by a source to a journalist , and iv . personal data of journalists and their employers related to their professional work .

Principle CARDINAL ( Right of non - disclosure of journalists )

Domestic law and practice in member GPE should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with LAW ( hereinafter : the Convention ) and the principles established herein , which are to be considered as minimum standards for the respect of this right .

ORG Right of non - disclosure of other persons )

Other persons who , by their professional relations with journalists , acquire knowledge of information identifying a source through the collection , editorial processing or dissemination of this information , should equally be protected under the principles established herein .

Principle CARDINAL ( Limits to the right of non - disclosure )

a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW , paragraph CARDINAL of the Convention . In determining whether a legitimate interest in a disclosure falling within the scope of LAW , paragraph CARDINAL of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member GPE shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and

ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :

- an overriding requirement of the need for disclosure is proved , - the circumstances are of a sufficiently vital and serious nature , - the necessity of the disclosure is identified as responding to a pressing social need , and - member GPE enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .

c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked .

ORG Alternative evidence to ORG sources )

In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person , authorities should consider , for the purpose of establishing the truth or otherwise of the allegation , all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist .

Principle CARDINAL ( Conditions concerning disclosures )

a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure .

b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested .

c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with LAW .

d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority .

e. Where journalists respond to a request or order to disclose information identifying a source , the competent authorities should consider applying measures to limit the extent of a disclosure , for example by excluding the public from the disclosure with due respect to LAW , where relevant , and by themselves respecting the confidentiality of such a disclosure .

Principle CARDINAL ( Interception of communication , surveillance and judicial search and seizure )

a. The following measures should not be applied if their purpose is to circumvent the right of journalists , under the terms of these principles , not to disclose information identifying a source :

i. interception orders or actions concerning communication or correspondence of journalists or their employers ,

ii . surveillance orders or actions concerning journalists , their contacts or their employers , or

iii . search or seizure orders or actions concerning the private or business LOC , belongings or correspondence of journalists or their employers or personal data related to their professional work .

b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions , although this might not have been the purpose of these actions , measures should be taken to prevent the subsequent use of this information as evidence before courts , unless the disclosure would be justified under LAW .

ORG against self - incrimination )

The principles established herein shall not in any way limit national laws on the protection against self - incrimination in criminal proceedings , and journalists should , as far as such laws apply , enjoy such protection with regard to the disclosure of information identifying a source .

For the precise application of the ORG , the explanatory notes specified the meaning of certain terms . As regards the term “ sources ” the following was set out :

c. Source

Any person who provides information to a journalist shall be considered as his or her " source " . The protection of the relationship between a journalist and a source is the goal of this Recommendation , because of the " potentially chilling effect " an order of source disclosure has on the exercise of freedom of the media ( see , Eu . Court H.R. , PERSON v. GPE , DATE , para . CARDINAL ) . Journalists may receive their information from all kinds of sources . Therefore , a wide interpretation of this term is necessary . The actual provision of information to journalists can constitute an action on the side of the source , for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures . Information shall also be regarded as being " provided " when a source remains passive and consents to the journalist taking the information , such as the filming or recording of information with the consent of the source . ”


The applicant , Mr PERSON , is a NORP national born in DATE and currently living in GPE . He was represented before the ORG by Mr Gazi Ziauddin , GPE . The respondent Government were represented by PERSON , ORG .

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

The applicant left GPE on DATE and came to GPE where he applied for political asylum . He claimed that he used to be a member of ORG ( hereinafter “ the party ” ) , an opposition left - wing party . He further claimed that , due to his political involvement , he had been arrested and jailed in DATE and subjected to repeated torture . He had been released after DATE . On DATE the Dhaka Judge Court had sentenced him to life imprisonment with hard labour for illegal possession of arms . However , the verdict had allegedly been an attempt to put an end to his political activity .

His application was rejected by ORG ) on DATE and by ORG ( Utlänningsnämnden ) on DATE , which concluded that the applicant would have the opportunity to receive a fair trial upon return to GPE , and that political activity did not , as such , entail persecution by the authorities in GPE . The applicant was sent back to GPE in DATE .

The applicant returned to GPE on DATE , again applying for asylum . He claimed that , upon arrival in GPE in DATE , he had been arrested by the military and brought to a police station where he had been questioned . Before the questioning , a member of the military had made the secret sign of the Sharbahara party . During the questioning , the soldiers had said that they had been looking for him and that they wanted to know whether he was PERSON , member of the PERSON party . He was then tortured badly and transferred to a prison from which he had escaped in DATE , with the help of a party friend . In spite of the torture he had not revealed his identity , which was , the applicant claimed , probably why the sentence of life imprisonment had not been executed . After having escaped , he had lived in hiding for DATE but had continued to work for the party .

The applicant further stated that he had been arrested at a party conference in GPE in DATE , after which he had been jailed and repeatedly tortured . After CARDINAL months’ imprisonment a party friend had helped him escape . Following his escape he had found out that he had been charged with the murder of another prisoner .

He had again lived in hiding , but had continued to work for the party . He had distributed leaflets and had been able to work quite freely . However , during a demonstration in DATE , he had been arrested and tortured anew . CARDINAL party members had been killed during the demonstration and he had been accused of the killings . Proceedings had been instituted against him in PERSON . He believed that he had escaped sometime in DATE or DATE . This time too , he had received help from a party member . He had subsequently found out that a court in GPE had sentenced him to death in absentia on DATE for the murder of his cell - mate of which he had been accused in DATE .

In a letter to ORG in DATE the applicant submitted that after his escape in DATE his political party had helped him to contact ‘ ORG , a nursing home in GPE where he had been treated DATE for his torture injuries . After his escape in DATE , he had returned to ORG and had been treated there DATE between DATE and DATE . Following his escape in DATE , he had received treatment in a nursing home in GPE .

The party had helped him leave GPE . He submitted before ORG that he risked being killed by his own party , because members who had been jailed were regarded as a security risk since they could reveal secret information concerning the party . His life was also threatened by NORP fundamentalists since he was a NORP . He had once been taken captive by such people and was to be killed . He had , however , managed to scare off his captors . Besides the death sentences against him , the Government had ordered the police to shoot members of the PERSON party .

On DATE ORG rejected the applicant ’s request for asylum . It made the following observations : The applicant had travelled to GPE with a false passport and had not applied for asylum until this had been discovered . He had also submitted unclear information regarding the details of his journey and had thus tried to hide information relevant to the investigation . Considering his submissions that he had on numerous occasions been arrested and tortured , that a life sentence had not been executed because the authorities had not been able to identify him , that he had in the meantime continued to work for the party , that he was persecuted by NORP fundamentalists , and that he risked being executed by his party despite having been continuously helped by the party to escape and in the end to leave the country , ORG concluded that the applicant was not credible . It also remarked that he had not been able to submit any documentation regarding his allegations .

Upon appeal , ORG , by a decision of DATE , granted the applicant a permanent residence permit . It reiterated that the applicant had been committed under LAW DATE , having been suicidal and diagnosed with potential post - traumatic stress disorder ( PTSD ) , which had however not been confirmed . The applicant had also submitted a medical certificate concluding that it was probable that he had been subjected to torture as alleged . ORG deferred to the conclusions of ORG with regard to his credibility . However , due to his medical condition , the applicant was entitled to stay in GPE .

The applicant ’s wife joined him in GPE in DATE together with their daughter PERSON , born in DATE . PERSON is physically handicapped and dumb . The applicant also has a DATE son in GPE with whom he has no contact . On DATE the applicant was charged with aggravated assault against a woman ( grov kvinnofridskränkning ) , it being alleged , inter alia , that on several occasions he had beaten his wife when she had refused to have sex with other men who had promised the applicant money , and had otherwise systematically abused her . The applicant had replied that , due to the torture he had become impotent and for this reason his wife had met another man . It was the applicant ’s understanding that they had conspired to put him in jail .

On DATE ORG ( tingsrätten ) of GPE convicted the applicant as charged . He was sentenced to DATE imprisonment and subsequent expulsion from GPE , being forbidden to return before DATE , in accordance with LAW , section CARDINAL of LAW , in conjunction with the relevant provisions of LAW .

Subsequent to the applicant ’s conviction , divorce proceedings between the applicant and his wife had been initiated at ORG . The same court had also awarded the applicant ’s former wife custody of their daughter . The applicant had appealed this latter decision .

Concerning the issue of the applicant ’s expulsion , ORG ( Migrationsverket ) submitted to ORG that there was no obstacle to expelling the applicant to GPE . The court did not make any separate assessment in this respect , but deferred to the conclusion of ORG . It further noted that , ever since the applicant had been granted a permanent residence permit in GPE , he had received a social security allowance and had been on sick - leave due to psychiatric problems until DATE . It therefore questioned to what extent he had acquired a real connection to NORP society . Moreover , the violence of which he had been convicted had been aimed at CARDINAL of his CARDINAL family members , his only relatives in GPE . The court held that , considering the nature of the violence and the applicant ’s ruthlessness , it could not be excluded that he would again commit a crime in GPE . Having regard to his weak links with GPE , as well as to the fact that he had had a residence permit for DATE , the ORG held that he could be expelled .

Both the prosecutor and the applicant appealed against the sentence , and the applicant also appealed against the expulsion order . On DATE ORG ( PERSON hovrätt ) raised the sentence to DATE and CARDINAL months’ imprisonment , but otherwise confirmed the verdict and agreed with the assessment of ORG . On DATE ORG ( Högsta Domstolen ) refused the applicant leave to appeal .

The applicant ’s expulsion was to be enforced on DATE . On DATE the police authority decided that he should be taken into custody upon his release from prison on DATE , to await the execution of his expulsion order .

On DATE the applicant submitted a petition to ORG , asking that the ORG stay or quash the planned expulsion . No information has been submitted as to the outcome . In support of the petition , the application claimed that proceedings had been initiated against him in GPE for the alleged killing of a Mr PERSON which had supposedly taken place in DATE . A group of investigators had found the applicant guilty of the killing . On CARDINAL and DATE a court had issued an arrest warrant for the applicant , referring to a provision in the NORP penal code under which the penalty , according to the applicant , was death or life imprisonment .

The applicant has submitted copies of NORP documents and translations thereof . CARDINAL of the documents is a “ charge sheet ” , dated DATE , according to which the injured party is the widow of the above - mentioned Mr PERSON . The applicant is mentioned as the “ hidden guilty person ” , apparently registered in an area called LOC within the district of GPE . It follows from the document , without further clarification , that a “ preliminary report ” had been issued on CARDINAL DATE . The charge sheet refers to the applicant as CARDINAL of the CARDINAL perpetrators of the alleged crime , the effect of which appears to have been the death of Mr PERSON . It states that a body was found covered in blood and that all the evidence was sent to the court . The second document is a ORG ’s “ court order ” , dated CARDINAL and DATE . It refers to a provision in GPE Code under which , according to the applicant , the penalty is death or life imprisonment . The document states that , on DATE , the investigation group found the applicant , who was in hiding , to be guilty as charged . Upon the request of the prosecutor , a warrant for his arrest was issued . The document states at the end “ Accused has been accepted ” . The copies of the NORP documents are accompanied by a statement from a Mr PERSON , senior advocate in the GPE and ORG . The letter in LANGUAGE is dated DATE , addressed to the applicant and reads , inter alia , as follows :

“ The punishment of the case might be either death sentence or life imprisonment and the facts of your absconding from the prosecution will contribute and confirm such depth of punishment . I understand quite well that a great unavoidable circumstances like torture and persecution which has been used for you in jail and the possibility of killing by the members of your [ Sharbahara party ] compelled you to leave the country but the nature of the case is ignoring such facts of circumstances . By the fact in issue , you are the master mind and the authority of the event and the possibility of escaping is less as the procedural materials developed in the case . ”

The applicant has also submitted transcripts from his medical journal and some medical certificates . In a transcript dated DATE from ORG för tortyrskadade ) at ORG ( “ FAC ) , the doctor concluded that the applicant had many scars and other marks on his body which could very well be the result of certain of the alleged acts of torture . A new transcript from his medical journal at FAC is dated DATE and states that , after his visit in DATE , the applicant submitted that he had been beaten , subjected to electric shocks , burned with cigarettes , drenched with hot water , suffocated , had needles put under his fingernails and his fingernails pulled out , and subjected to strong light and high volume noise . In a certificate dated DATE , also from the Centre , Dr PERSON , specialist in forensic medicine , noted that the applicant had acquired new injuries , many of which were consistent with scarring from cigarette burns . It could not be excluded that some of the marks had been contracted due to disease , but it was less probable that the scars would have arisen due to accidents or that they had been self - inflicted . He concluded that it was probable that the applicant had been tortured or beaten as alleged , and that many of the torture methods mentioned would only occasionally leave any lasting marks . The torture described was furthermore to a great extent compatible with the ORG ’s previous experience of torture in GPE .

In a certificate from the ORG dated DATE , Dr PERSON , chief physician and specialist in general psychiatry , noted that the applicant had urgent thoughts of suicide and was completely absorbed by the memories of traumatic experiences . He had severe sleeping problems and difficulties to eat . His speech was partly incoherent but he described electric torture in a manner indicating that he had experienced it .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before ORG by PERSON , a lawyer practising in FAC . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant filed a civil action with ORG , ORG . The applicant was a victim of chemical poisoning to which she had been exposed while she was performing her job ( she took part in a rescue operation as a doctor ) . She sued both her former employer ( the ambulance station ) and the company responsible for the accident . She sought a pension , damages and just satisfaction . The criminal responsibility for the accident as well as the fact that the applicant was a victim of the accident had already been established by the criminal court .

On DATE the first hearing was held .

Subsequent hearings were held on DATE , DATE , CARDINAL DATE , DATE , DATE and CARDINAL DATE .

On DATE the ORG gave a judgment . It ordered the applicant ’s former employer to pay her a pension and dismissed the remainder of the action instituted against her former employer . In addition , it transferred the part of the action lodged against the company responsible for the accident to another court as it considered that it was not competent to examine the case . It ruled that it was ORG , not ORG , that should deal with the part of the action against the company . Both the applicant and the defendant appealed .

On DATE the ORG upheld the judgment . In its written grounds it stated inter alia that the transfer of the part of the action to another court was not consistent with relevant legal provisions . However since , according to NORP law , this was not subject to appeal , ORG did not decide on the issue .

On DATE the ORG was served with the files which had been transferred to that court on the strength of the judgment of CARDINAL DATE .

On DATE the first hearing was held .

On DATE the next hearing was held , during which ORG ordered that the applicant ’s case history be submitted by the hospitals which had treated the applicant even though the applicant ’s case history had already been attached to the file .

On DATE the next hearing was held , during which ORG ordered that the evidence of various medical experts should be heard .

Subsequent hearings took place on DATE , DATE and DATE .

On DATE ORG ordered that additional medical experts’ opinions should be submitted .

On DATE , after all the required opinions had been submitted , the next hearing was held . ORG decided to hear one of the doctors who had given an opinion .

On DATE the ORG found that the case was ready for examination .

On DATE the ORG opened the proceedings anew in order to admit fresh evidence and fixed the date of a hearing for CARDINAL DATE .

On DATE some of the doctors who had given opinions were heard .

On DATE the ORG gave a judgment by which it ordered that just satisfaction and a pension be paid to the applicant . The judgment included an enforcement clause . Both the applicant and the defendant appealed against the award . The defendant also challenged the enforcement clause .

On DATE the ORG quashed the enforcement clause . The applicant appealed .

On DATE the ORG dismissed the applicant ’s appeal concerning the enforcement clause .

On DATE ORG upheld the first - instance judgment as to the merits .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of LAW lays down the following transitional rules in relation to the applications already pending before the Court :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”

For a more detailed presentation of the relevant domestic law see NORP v. GPE DATE . ) , no . CARDINAL , ECHR DATE ; PERSON v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE .


The applicant is an NORP citizen , born in DATE living in GPE . He is represented before ORG , Solicitors , GPE .

A.

“ In or TIME CARDINAL DATE the applicant was arrested in a cubicle in the public toilet of < a hotel>. The door had been forced open . The prosecution alleges that on the floor between the legs of the accused was a bag marked “ ORG at FAC ” . Inside the bag was a quantity of notes which appeared to be GPE dollars . The prosecution intends to call evidence from a member of ORG that the dollars are forged .

The applicant was conveyed to < a police > station where he was detained under LAW DATE . The applicant was taken to an interview room by < CARDINAL detectives>. In the course of the interview < Detective R > alleges that he explained sections DATE and CARDINAL of LAW DATE to the applicant . The applicant gave his name and address in response to questions and in CARDINAL instance replied < with the name of his girlfriend>.

At CARDINAL.CARDINALpm the applicant was again taken to the interview room . Present were < CARDINAL detectives>. Detective R alleges that he produced a copy of < a police manual > and read sections CARDINAL and CARDINAL of LAW DATE to the applicant and that he explained the meaning of the sections in ordinary language . He also made certain statements to the accused as to the meaning in law in regard to the sections . The applicant declined to reply to questions put to him during the interrogation . ”

The applicant does not dispute in his application to the ORG that when he was arrested by the detectives , he was in a cubicle in the toilets of the hotel with the plastic carrier above - described bag between his legs . He does not dispute that , when he was asked what was inside the bag , he replied “ What bag ? ” or that the plastic bag contained forged dollars . He accepts that he was cautioned on arrest as follows :

“ You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence . ”

He also accepts that he responded a second time “ What bag ? ” when asked about the bag . He also accepts that after TIME in the police station he was brought to an interview room and again cautioned in the above terms and that when he was again asked about the bag he replied giving his name and address only . The applicant does not dispute that he was interviewed a second time , given a copy of the police manual , that the detective in question read sections DATE to him and explained the meaning of those sections in ordinary language . He confirms that he did not proffer any explanation to the detectives .

When the period of the applicant ’s detention expired the applicant was arrested for an offence under section CARDINAL of the Forgery Act DATE and he was brought before ORG where evidence was given of arrest , charge and caution . He pleaded not guilty and he was remanded on bail from time to time until he was returned for trial to ORG . His trial was subsequently adjourned pending his constitutional challenge to sections DATE of LAW DATE .

In its judgment of DATE , ORG quoted , with approval , the judgment of ORG in the case of PERSON v. GPE ( [ DATE ] CARDINAL IR CARDINAL ) and considered that the constitutional right to remain silent could be diluted in certain circumstances . The constitutional validity of any such reduction in protection would depend on whether it was considered proportionate given the competing public and individual interests involved . Applying that test , ORG found that the sections were not an excessive intrusion on the rights of an accused and were therefore not unconstitutional .

The applicant appealed to ORG . That court considered that the above - cited case of PERSON v. GPE did not automatically dispose of the issues in the case . Having analysed the provisions of section CARDINAL ( which operated in the same manner as section DATE ) , ORG pointed out that the courts were not obliged to draw negative inference but could draw such inferences as appeared proper . It was a matter for the court , or the jury subject to the court ’s directions , to decide whether any such inferences would be drawn . In so deciding , the court was obliged to act in accordance with the principles of constitutional justice and was under a constitutional obligation to ensure that no improper or unfair inferences were drawn or permitted to be drawn from such failure or refusal .

Moreover , it was clear from the provisions of the section CARDINAL that it did not interfere in any way with the accused person ’s right to be presumed innocent or with the obligation on the prosecution to establish guilt beyond all reasonable doubt . The burden of proof on the prosecution in a criminal charge was not in any way affected by the provisions of the relevant sections , which merely provided a factor which might be adduced as evidence in the course of the trial . Furthermore , if such inferences were properly drawn , they amounted to evidence only and were not taken as proof . A person could not be convicted solely on the basis of such inferences , the inferences being corroborative of other evidence in relation to which the failure or refusal is material .

As regards the right to remain silent , in particular , ORG noted that the ORG was constitutionally obliged to protect its citizens from attacks on their person or property but was obliged to have due regard for the constitutional rights of accused persons . The question was whether the restrictions which the relevant sections placed on the right to silence were any greater than was necessary to enable the ORG to fulfil its constitutional obligations , the court noting that the “ principle of proportionality ” was a well established tenet of NORP law . The court considered that sections CARDINAL and CARDINAL of the DATE Act sought to achieve that balance . It was not the court ’s role to decide whether a perfect balance had been reached but merely to decide whether the legislature had acted within the range of what was permissible . The court found that the legislature had done so , considering CARDINAL factors limiting sections CARDINAL and CARDINAL important ; an inference could not form the basis of a conviction in the absence of other evidence and an adverse inference could only be drawn where the court deemed if proper to do so . An example of where it would be improper would be where the prejudicial effect of an inference would wholly outweigh its probative value as evidence .

On DATE the applicant ’s case came on for trial in ORG . The applicant pleaded guilty and he was given a DATE suspended sentence on condition that he enter a bond of good behaviour for DATE . The applicant entered the bond .

B. Relevant domestic law and practice

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) Where

( a ) a person is arrested without warrant by a member of the < police > , and there is ;

( i ) on his person , or ,

( ii ) in or on his clothing or footwear , or

( iii ) otherwise in his possession , or

( iv ) in any place in which he is at the time of his arrest

any object , substance or mark , or there is any mark on any such object , and the member reasonably believes that the presence of the object , substance or mark may be attributable to the participation of the person arrested in the commission of the offence in respect of which he was arrested , and

( b ) The member informs the person arrested that he so believes , and requests him to account for the presence of the object , the substance or mark , and

( c ) The person fails or refuses to do so ,

then if , in any proceedings against the person for the offence , evidence of the said matters is given , the court , in determining whether to send forward the accused for trial or whether there is a case to answer and the court ( or subject to the judge ’s directions , the jury ) in determining whether the accused is guilty of the offence charged ( or of any other offence of which he could lawfully be convicted on that charge ) may draw such inferences from the failure or refusal as appear proper ; and the failure or refusal may , on the basis of such inferences , be treated as , or as capable of amounting to , corroboration of any other evidence in relation to which the failure or refusal is material , but a person shall not be convicted of an offence solely on an inference drawn from such refusal or failure .

( CARDINAL ) References in subsection ( CARDINAL ) to evidence shall , in relation to the preliminary examination of a charge , be taken to include a statement of evidence to be given by a witness at the trial .

( CARDINAL ) Subsection ( CARDINAL ) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon .

( CARDINAL ) Subsection ( CARDINAL ) shall not have effect unless the accused was told in ordinary language by the member of the < police > when making the request mentioned in subsection ( CARDINAL ) what the effect of the failure or refusal might be .

( CARDINAL ) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object , substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section . … ”

Section CARDINAL relates to the presence of an accused at a particular place and is similar in its effect to section CARDINAL . It reads , in so far as relevant , as follows :

( CARDINAL ) Where

( a ) a person arrested without warrant by a member of the < police > was found by him at a particular place on or about the time the offence in respect of which he was arrested is alleged to have been committed , and

( b ) the member reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence , and

( c ) the member informs the person arrested that he so believes , and requests him to account for such presence , and

( d ) the person fails or refuses to do so ,

then if , in any proceedings against the person for the offence , evidence of the said matters is given , the court , in determining whether to send forward the accused for trial or whether there is a case to answer and the court ( or subject to the judge ’s directions , the jury ) in determining whether the accused is guilty of the offence charged ( or any other offence of which he could lawfully be convicted on that charge ) may draw such inferences from the failure or refusal as appear proper ; and the failure or refusal may , on the basis of such inferences , be treated as , or as capable of amounting to , corroboration of any other evidence in relation to which the failure or refusal is material , but a person shall not be convicted of an offence solely on an inference drawn from such refusal or failure .

( CARDINAL ) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for his presence which could properly be drawn apart from this section . … ”


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant was arrested by the police on suspicion of having stolen property .

He was allegedly subjected to psychological pressure in order to confess to the crime with which he had been charged , following which he made self - incriminating statements . He subsequently confirmed his statements and asked the courts to reduce his sentence in view of his family ’s poor financial situation . He had allegedly had to steal in order to feed his family . He also claimed that he had never seen the ORG - appointed lawyer handling his case , who had signed all the documents relating to the matter after the fact in order to lend an appearance of legitimacy to the investigation .

On DATE the applicant was convicted by ORG . That judgment was upheld by ORG on DATE . The applicant did not inform the ORG of any subsequent judgments concerning his case .

After his arrest , the applicant was detained in LOC police station for DATE in a cell measuring just over QUANTITY . m together with CARDINAL other detainees . It was impossible to sleep or sit there – one could only stand . There was no window or other means of ventilation .

The applicant was subsequently transferred to the LOC of ORG ( “ the ORG ” ) . However , he was brought back to LOC police station several times for further questioning and each time he was detained in the same QUANTITY . m cell as previously . In the ORG ’s premises he was placed in cell no . CARDINAL , which measures QUANTITY and in which CARDINAL detainees were held . The cell was unventilated , dirty and damp . No daily walk was allowed . A window of QUANTITY was covered with thick metal netting preventing almost all sunshine and air from reaching the cell . The cell had a toilet , next to the dining table . Water was available from a tap installed above the toilet . Detainees had to take turns to sleep . The cell was infested with parasitic insects . No bed linen was available . No doctor visited the cell . The prosecutor responsible for checking conditions of detention fully supported the police and did not take action in response to any complaints .

DATE the applicant was transferred to prison no . CARDINAL in PERSON and placed in cell no . CARDINAL . The cell was in the basement , had no windows and was not heated ; it was very cold and damp . There were more detainees than sleeping places in the cell .

On DATE he was transferred to prison no . CARDINAL in Cricova .


Violation of P1-1;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

She is the owner of a flat in PERSON ( GPE ) , which she had let to PERSON

In a registered letter of CARDINAL DATE , the applicant informed the tenant that she intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Salerno Magistrate . The tenant told the applicant that he would not leave the LOC .

By a decision of DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

On DATE , the bailiff made CARDINAL attempt to recover possession , which proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for herself .

On DATE , the applicant asked the Salerno Magistrate to be granted the assistance of the police in enforcing the order for possession .

On DATE , the Salerno Magistrate decided to grant the assistance of the police .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

Pursuant to law no . MONEY , the enforcement proceedings were suspended .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

A. The system of control of the rents

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .

Obligations of the tenant in the case of late restitution

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

The applicants , Mr PERSON , Mr PERSON , Mr PERSON LOC and Mr PERSON are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE .

The first CARDINAL applicants are councillors on ORG elected on behalf of ORG . The fourth applicant is the editor of the newspaper “ In - Nazzjon NORP ” .

In DATE a controversy arose between the central government of GPE and ORG over the “ Hompesch ” Road Project ( hereinafter , the “ HRP ” ) in GPE . The matter was brought before the domestic courts and gave rise to a political discussion in ORG .

On DATE , during a ORG meeting , the applicants presented a motion calling for the ORG to hold a public consultation meeting on the matter . The ORG rejected the motion .

On DATE the Fgura Mayor published an article in the newspaper “ In - Nazzjon Taghna ” .

On DATE the first CARDINAL applicants published an article in reply in the same newspaper . A passage of this article read as follows :

“ ORG did not consult the public and is ignoring public opinion on the matter . ”

On DATE ORG sued the applicants for libel and defamation in their capacity as authors and editor of the article published on DATE . It submitted that the defendants had attributed to it specific and unproved facts with the intention of destroying or reducing its reputation .

The applicants challenged this claim , submitting that the article complained of amounted to fair comment . They claimed that , even though they had put forward a motion to hold a public meeting , ORG had failed to hold a public consultation on the matter . In the applicants ' opinion , the efforts made by the ORG to analyse the controversy did not amount to a public consultation .

By a judgment of CARDINAL DATE , ORG found in favour of ORG and ordered the applicants in solidum to pay CARDINAL NORP Liri ( Lm – approximately MONEY ( ORG ) ) for moral damage .

ORG considered that the article complained of had been written in the context of a political controversy which had also been discussed in the local press . It stated that there had been a misunderstanding between the labour councillors and ORG . The labour councillors had proposed that part of FAC should be CARDINAL - way . However , according to the article , this proposal had been rejected by ORG , ORG and ORG . The first CARDINAL applicants , in their capacity as nationalist councillors , wished to bring forward the commencement of the works and had asked the labour councillors to remove the political straightjacket . Finally , the first CARDINAL applicants had stated that ORG had omitted to consult the public and was ignoring public opinion on the HRP .

NORP However , ORG found that , as highlighted by the plaintiff , a number of measures had been taken in order to submit the project to public scrutiny .

NORP In particular , both the Minister responsible for roads and the Director of ORG had expressed themselves publicly to the effect that discussions were being held with ORG regarding the matter . Moreover , it was not true , as claimed by the applicants , that the proposal that part of FAC should become one - way had been rejected . In fact , at the relevant time , CARDINAL of the CARDINAL authorities which had allegedly rejected the proposal had not yet been constituted . Notwithstanding that ORG was not bound to hold any public consultation , the matter had been brought up at a public meeting organised by it on DATE . There had also been public consultation since the project itself had commenced as a result of a public meeting held in DATE . A qualified “ urban planner ” had also been engaged to prepare a report on the road in question . Urban policy for the locality was based on this report and to reinforce this policy further public consultation had taken place in DATE .

Furthermore , a questionnaire had been distributed locally to give residents the opportunity to express their position on the matter and a similar invitation had been made in DATE edition of the official publication of ORG . On DATE ORG had organised another public meeting with several bodies and on DATE had approved the conclusions of this meeting .

In ORG opinion , there had to be a clear distinction between an allegation of fact on which fair comment could be based and an allegation which was solely a malicious manipulation of the facts . According to the case - law of ORG , a comment was justifiable only if it were fair and made bona fide . Thus , it could only be based on a fact that was proved to be true . In the present case , however , the facts alleged by the first CARDINAL applicants had not been proved . From the outset of the trial , rather , it had been demonstrated that public consultation had taken place .

ORG concluded that the fourth applicant , as editor of the newspaper , had been aware of the controversy and believed that the comment of the first CARDINAL applicants had been justified . Finally , he had also agreed to publish a response from ORG to the article in issue .

The applicants appealed to ORG . They claimed that the first - instance court had made a wrong assessment of the facts and had applied the law incorrectly . In any event , the amount awarded to ORG in damages was excessive .

By a judgment of DATE , ORG confirmed ORG finding that the publication had been libellous and defamatory . However , it decided to reduce the amount of the damages to Lm CARDINAL ( approximately ORG CARDINAL,CARDINAL ) .

ORG recalled that , as ORG was a public organ , the limits of acceptable criticism directed at its acts could be wider . However , the establishment , assessment and evaluation of facts were for the first - instance judge and , unless this evaluation was arbitrary or illogical , ORG would not interfere . In the present case , on the basis of the evidence before it , ORG found that the facts stated in the publication did not reflect the truth .

On DATE the applicants filed a constitutional complaint with ORG ( FAC ) .

They claimed that the publication in question was a legitimate criticism of local government action which was permissible in a NORP society . Thus , the obligation to pay damages imposed on them had infringed their right to freedom of expression , as guaranteed by LAW .

The applicants considered that their statements were part of their duty as elected councillors and that they had the right to inform the public about matters of public interest . They emphasised that the libel proceedings had not been instituted by a physical person but by a local council and that the article complained of had criticised a local government and its administrative actions . Therefore , no restrictions on their freedom of expression could be imposed .

In a judgment of DATE , ORG rejected the applicants ' claim .

ORG observed that according to the case - law of ORG , the right to freedom of expression was not absolute . In particular , the exercise of this right carried with it duties and responsibilities , which were particularly important when it came to attacking the reputation of private individuals and undermining the rights of others . Journalists had to act in good faith in order to provide accurate and reliable information .

ORG also highlighted the importance of the balance between the right to freedom of expression and the right to reputation , honour and good name . In the present case , there was no doubt that the interference with the applicants ' right to freedom of expression had a legal basis in LAW of the laws of GPE . Furthermore , it was proportionate and necessary in a democratic society for the protection of the rights of others . ORG referred , in particular , to the fact that the amount of damages had been reduced and had been imposed as a result of civil proceedings .

The applicants appealed to ORG .

They claimed that ORG had failed to examine the merits of the case . As the article complained of had contained criticism of a local government , the opinions expressed in it should enjoy a higher level of protection . Furthermore , according to the applicants , a local government did not have a reputation which required protection . Thus , statements made against it could not be held to be defamatory and libellous . The applicants finally argued that all they had done was to express their opinion that the consultation about the HRP had not been satisfactory .

By a judgment of DATE , ORG upheld the ORG judgment .

Having examined the judgments given by ORG and by ORG , ORG found that the law had been applied both effectively and correctly .

Although the applicants had not previously raised the plea that a local council could not be defamed , ORG addressed the matter . It stated that a local council could both defame and be defamed . Furthermore , ORG held that although the limits of acceptable criticism were wider with respect to governments , the attribution of false facts was not protected under LAW .

LAW , in so far as relevant , states that a press offence is committed by means of the publication or distribution in GPE of printed matter . Under LAW of LAW , whosoever by such means libels any person , shall be liable to a fine upon conviction .

According to LAW of the said LAW such proceedings :

“ ... may be instituted against each of the following persons :

( a ) the author , if he composed the work for the purpose of its being published , or if he consented thereto ;

( b ) the editor ; ... ”


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in FAC . ORG ( “ the Government ” ) were represented by their Agent , Mr J PERSON of ORG .

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

On DATE the applicant was arrested by the police on suspicion of robbery of a jewellery store together with CARDINAL other persons .

On DATE the ORG remanded him in custody . It relied on the reasonable suspicion that he had committed the offence in question and the need to secure the proper conduct of the investigation . It referred to the likelihood of a severe prison sentence being imposed on him .

On DATE ORG extended the applicant ’s detention until DATE relying on the original grounds given . It further made references to the actions already taken in the investigation and indicated the evidence that still had to be taken . The court also found that there were no special grounds , as specified in LAW , that would justify lifting the detention and imposing a less severe measure .

The applicant ’s detention was subsequently extended on DATE and DATE and DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE . The court referred to the grounds for detention listed in the previous decisions . The applicant did not appeal against any of the decisions .

On DATE a bill of indictment was filed with ORG against the applicant and CARDINAL accomplices . It comprised of charges of CARDINAL offences . The prosecutor requested that CARDINAL witnesses be heard and statements from CARDINAL witnesses read out . Further , he stressed that an extensive body of evidence consisting , inter alia , of CARDINAL documents , had to be considered .

On DATE ORG , on an application from the trial court , extended the applicant ’s detention until DATE . The court relied on a strong suspicion that the applicant had committed the offences in question , which was supported by evidence from witnesses and expert reports . It considered that the severity of the anticipated penalty could by itself be a sufficient ground for continuing the detention in order to secure the proper course of the proceedings .

Upon an appeal by the applicant , filed on an unspecified date , ORG upheld that decision on DATE .

On DATE ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment . The applicant appealed . His detention was subsequently further extended on DATE , CARDINAL DATE , CARDINAL DATE and DATE and DATE .

On DATE ORG upheld the first - instance judgment . It appears that the applicant failed to lodge a cassation appeal , despite its availability .

On DATE the applicant lodged a written complaint concerning the proceedings in question . The court treated it as a complaint under the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

At a hearing of DATE the applicant declared that he did not wish to lodge a complaint about a breach of the right to a trial within a reasonable time but a complaint about alleged shortcomings of the pending proceedings . Hence his complaint was not examined under LAW .

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


Violation of Article 6 - Right to a fair trial

The applicant was born in DATE and lives in PERSON .

The applicant was suspected of having supplied large amounts of illegal drugs to other persons for distribution . The pre - trial investigation against the applicant and other suspects was concluded on DATE .

During the pre - trial investigation , the applicant had been represented by a court appointed counsel , PERSON On an unspecified date prior to the trial PERSON informed ORG ( käräjäoikeus , tingsrätten ) , which was the court of jurisdiction , of the dates when he would not be available due to other engagements . According to the applicant , the court had then informed PERSON that the trial dates had already been fixed . On DATE PERSON was informed that in such a large case the court would not be able to arrange the trial dates to suit the lawyers ' requests and that a representative should arrange for a substitute to deal with other pending cases . The court asked PERSON whether he would prefer that the applicant be appointed another representative .

On DATE the public prosecutor brought charges against the applicant and CARDINAL other defendants in ORG . The prosecution evidence comprised , inter alia , recordings of telephone conversations obtained through police interception .

The court 's oral hearing was held in CARDINAL sessions DATE . The applicant appeared in person at CARDINAL of those sessions . At CARDINAL of them he was represented by PERSON and at the other CARDINAL by a different lawyer .

During the session of CARDINAL DATE the applicant and CARDINAL other defendants requested access to certain recordings in the possession of the police but not included in the case material . They contended that those recordings concerned business arrangements other than the alleged drugs trading , and other material supporting their innocence . The prosecutor opposed the request , stating that a number of recordings , to the necessary extent , had been included in the case file . He further maintained that recordings of such telephone conversations which did not support the charges had also been included in the file .

NORP In order to provide the court with further evidence in the matter , the prosecutor called the investigating police officer to the stand . In its TIME , the court summarised his statement as follows :

“ All recordings of telephone conversations pertaining to the offences in question have been included in the pre - trial investigation material available to the parties . Recordings not related to the matter were either destroyed at once or removed later . The threshold for including recordings to the case material has been low . In case of doubt as to whether a given recording was related to the matter or not , it has been attached to the case material . As far as the witness could recall , there had been CARDINAL conversations between [ the applicant ] and [ another defendant ] , of which CARDINAL had been attached to the case material . ”

The witness had also explained that the recordings gathered during the investigation had indeed disclosed a number of other dealings between the defendants concerning , inter alia , procuring and trading in cars and car parts .

Relying on the above witness testimony the court rejected the defendants ' request finding that all relevant recordings had been included in the pre - trial investigation material , submitted at the disposal of the court and the parties . The court noted that the police had operated under the duty to include in the case file recordings both for and against the suspects . The court detected no evidence of misconduct by the police . Nor did the evidence support the alleged necessity of gaining access to the remaining recordings .

On DATE the court found the applicant guilty of drugs offences and sentenced him to DATE imprisonment . In its assessment , the court relied mainly on recordings of telephone conversations , telephone metering information concerning telecommunications between the defendants and police observations recorded in the pre - trial investigation report .

The applicant appealed to ORG ( hovioikeus , hovrätten ) claiming that the lower court had refused him the right to submit as fresh evidence recordings of telephone conversations concerning procuring , trading in cars and car parts and attempts by CARDINAL of his co - defendants , ORG , to purchase drugs from sources other than the applicant . Those recordings , favourable to his defence , had not been included in the prosecution evidence . The applicant therefore requested that the police be ordered to provide the court with all the remaining recordings . Later he limited his request to only those recordings involving himself and ORG He also asked for a chronological list of recordings destroyed by the police .

In his letter of appeal , the applicant also argued that he had not been given adequate time and facilities for the preparation of his defence as ORG had fixed the dates for its oral hearing without consulting PERSON , who had been forced to send a substitute for CARDINAL sessions . The applicant also criticised the lower court 's assessment of evidence specifying several telephone conversations which the court had allegedly interpreted to his disadvantage in breach of the presumption of innocence . He further maintained that ORG had not given sufficient reasons for its conclusions .

On DATE ORG decided to grant the applicant 's request concerning the remaining recordings , referring to LAW in that connection . The court found that an opportunity to have access to those recordings still in the possession of the police was important for building a proper defence . ORG refused , however , the applicant 's request concerning a list of the destroyed recordings . It found that the applicant had not presented sufficient reasons in support of that request and that the fairness of the proceedings would not be compromised if he did not receive such a list .

In the subsequent oral hearing , held in CARDINAL sessions DATE and DATE , ORG was presented with the same evidence as ORG . It also received fresh evidence , including recordings of telephone conversations submitted by the applicant .

During the oral hearing the applicant contested the fairness of the proceedings . He asserted that the evidence included in the pre - trial investigation material , and presented by the prosecution , was neither reliable nor sufficient as the telephone metering information was erroneous and a number of recordings of telephone conversations had been destroyed . He claimed that the pre - trial investigation had been insufficient in other aspects as well , for instance , not all of ORG 's relevant drug dealings had been investigated . The court was also presented with the argument that part of the evidence had been obtained illegally through unlawful house searches .

On DATE ORG dismissed the applicant 's appeal , upholding ORG judgment .

As to the arguments concerning the alleged unfairness of the proceedings , the court observed that the applicant had been given access to a number of fresh recordings , according to his request . The court noted that , pursuant to LAW ( pakkokeinolaki , tvångmedelslag , LAW . PERSON ) as in force at the time of the investigation , the police had been obliged to destroy any information not related to the suspected offence .

The court went on to state that the facts of the case did not give any reason to believe that the destroyed recordings had been relevant to the case . As to those recordings submitted by the applicant at the appellate stage the court stated that , firstly , they had not contained any relevant new information and , secondly , they had been irrelevant to the case . Having also received testimony from the investigating police officer , the court did not subscribe to the argument about the alleged insufficiency of the pre - trial investigation . Nor did the court find any other reason to suspect that the fairness of the proceedings had been jeopardised .

As to the subject matter , ORG firstly referred to ORG reasoning and stated that the fresh evidence produced on appeal did not contradict the evidence already presented in the case . The court concluded that , while no single piece of evidence as such was sufficient for a conviction , the evidence as a whole was enough for the guilty verdict . It went on to give more specific reasons of its own reflecting the evidence produced before it . The court stated , inter alia , that in assessing the evidence it had taken into account the arguments made against the charges and the fact that the applicant had not been the only person to have supplied drugs to ORG

The applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) relying to a large extent on his previous arguments . He maintained that the police had destroyed relevant information which would have shown that he had not been the person supplying drugs to his co - defendants . He also contended that ORG had failed to comment on his arguments concerning inadequate time and facilities for the preparation of his defence , the errors in and unreliability of the telephone metering information , and the lower court 's insufficient reasoning . He further claimed that ORG had not allowed him to submit telephone metering information as fresh evidence but had permitted the prosecution to do so .

On DATE ORG refused leave to appeal .

In a decision given on DATE the Deputy Parliamentary Ombudsman ( eduskunnan apulaisoikeusasiamies , riksdagens biträdande justitieombudsman ) found that , during the pre - trial investigation of the above case , the police had searched an apartment occupied by the applicant 's co - defendant CARDINAL times without following the lawful procedure , that is without informing the occupant about the search . During those searches a certain amount of drugs had been found . The Deputy Parliamentary Ombudsman issued a reprimand for unlawful conduct to the police officials involved .

LAW , section QUANTITY of LAW , as in force at the relevant time , provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him , or calls received by a suspect through such an extension , if the information thus obtainable could be assumed to be of vital importance for solving a crime . This permission could only be granted for serious offences listed in the provision , including aggravated drugs offences .

LAW , sections CARDINAL of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked . Recordings which were not to be destroyed were to be retained for DATE after the case had been resolved with legally binding effect or removed from the docket .

LAW , section CARDINAL of LAW was amended by Act no . CARDINAL , which came into force on DATE . The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence , or pertaining to an offence other than the CARDINAL covered by the authorisation , is to be destroyed after the case has been resolved with legally binding effect or removed from the docket . The Government PERSON ( hallituksen esitys , regeringens proposition , no . CARDINAL/CARDINAL ) concerning the amendment stated that , according to the provision in force at the time , superfluous information was to be destroyed as soon as it had been checked . Information supporting the innocence of the suspect could thus also be destroyed as superfluous information . The provision was thus proposed for amendment in order to ensure that all the material would be available for the [ subsequent ] proceedings , where necessary .

Section CARDINAL of the Act on Public Prosecutors ( laki yleisistä syyttäjistä , lag om allmänna åklagare , Act no . ORG ) provides , inter alia , that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case , the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties .

The same principle applies to the conduct of the police , who have the duty , under section CARDINAL ( CARDINAL ) of LAW ( esitutkintalaki , förundersökningslag , Act no . CARDINAL/CARDINAL ) to investigate and take into consideration the facts both for and against the suspect .

Section CARDINAL of LAW , as in force at the relevant time ( Act No . CARDINAL/CARDINAL ) , obliged the police to draw up a report of the pre - trial investigation , if this was necessary for subsequent proceedings . Among other things , the report was to include all documents and recordings obtained during the investigation , if they were deemed relevant to the case . The report was also to include a list of any material obtained in the investigation but not included in the report .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant concluded a loan agreement ( “ the agreement ” ) ( договор за одобрување на кредит ) with the “ ORG ” DATE ( “ the company ” ) , in accordance with which he received a loan in the amount of DM CARDINAL ( NORP PERSON ) under the following conditions : to repay the loan within DATE with PERCENT DATE interest . The applicant took the loan for the benefit of Mr PERSON who had been ineligible to apply due to his poor financial status .

On DATE , the then ORG entered a notice ( “ the notice ” ) in the public register , recording a mortgage in favour of the company over a house and a plot of land owned by the applicant .

The principal amount of the loan with interest was paid by PERSON within the DATE period as set forth in the agreement . Despite that fact , the company continued charging PERCENT interest although the validity of the agreement had not been extended . Until DATE the amount was paid by PERSON on behalf of the applicant . After that date , the applicant continued to pay PERCENT interest until DATE when the loan was completely repaid .

On DATE ORG Instance deleted the notice from the public register after it had received a notification by the company that the loan had been completely repaid .

On an unspecified date in DATE , PERSON brought a civil action against the company and the applicant claiming the difference between the interest actually paid and the domestic rate , following the DATE period . According to the expert opinion given in this case , Mr PERSON and the applicant overpaid in the sum of DM CARDINAL , CARDINAL . On DATE Mr PERSON withdrew the claim against the applicant . On DATE ORG Instance dismissed the applicant 's request to intervene in the proceedings as a claimant and ordered his claim to be registered separately . On DATE the court 's decision became final and the applicant 's action was registered as a separate claim .

Mr PERSON 's claim was dismissed on DATE and DATE respectively , by ORG and ORG . The courts considered that the company had no legal capacity to stand in the proceedings as it had concluded the agreement with the applicant and not with PERSON The courts further found Mr PERSON 's claim ill - founded as he had not been a party to the agreement , even though the applicant had concluded it for his benefit .

It appears that the applicant 's claim was dismissed by the trial court 's decision of DATE . On DATE ORG upheld the applicant 's appeal and remitted the case for a fresh consideration .

On DATE ORG Instance dismissed as ill - founded the applicant 's claim for unlawful enrichment ( неосновано збогатување ) . It held that the company had lawfully charged PERCENT interest as the loan had not been repaid in time and accordingly as such the applicant had been liable to pay interest as set forth in the agreement . It concluded , therefore , that the agreement had been implicitly extended without a need for a further express agreement by the parties . The court further declared as withdrawn the applicant 's claim against Mr PERSON

On DATE ORG upheld the applicant 's appeal and remitted the case for re - examination . It held that the lower court had not properly established in what capacity the company had concluded the agreement : as an undertaking or a savings institution ( штедилница ) . Relying on a letter of ORG DATE , it stated that the company had not been incorporated as a savings institution at the time when the agreement had been concluded and consequently , that it had not been authorised to give loans in foreign currency . It held that the manner of incorporation of the company was decisive for the legal status of the agreement : namely , whether it was null and void or whether another agreement was implicitly concluded . In the latter case , the company could only charge statutory interest , but not at the rate as provided for by the agreement .

On DATE ORG upheld the applicant 's claim . The court found that , at the time when the agreement had been concluded , the company had not been incorporated in compliance with ORG and , as a consequence , it had not been authorised to give loans in foreign currency , but only in domestic currency . It further established that the company had been incorporated as a savings institution on DATE , i.e. following the conclusion of the agreement . It consequently declared the agreement null and void . As the agreement met the statutory requirements of another agreement ( договор за заем ) , the court decided to consider it as it had been so concluded . As the company was not authorised to enter into loan agreements in foreign currency and to charge interest as set forth by the agreement , the court ordered it to repay the applicant ORG CARDINAL,CARDINAL , as the difference between the interest actually paid and the domestic rate , together with interest .

On DATE the company appealed . By submissions of CARDINAL DATE and DATE it supplemented the appeal .

On DATE the applicant replied to the company 's appeal .

On DATE ORG dismissed the company 's appeal and upheld the lower court 's decision . It held that the court below had correctly established the facts and applied domestic law . It reiterated that , at the time when the agreement had been concluded , the company had not been incorporated in accordance with ORG and , as such , it had not been authorised to give loans in foreign currency . It also found that the lower court had correctly declared the agreement null and void .

On DATE ORG granted the applicant 's request for enforcement and ordered the company to pay the amount due . The money was subsequently transferred to the applicant .

On CARDINAL DATE the company submitted to ORG an appeal on points of law ( ревизија ) .

On DATE the public prosecutor lodged with ORG a request for the protection of legality ( барање за заштита на законистоста ) .

On DATE ORG gave a single decision upholding the company 's appeal on points of law and the public prosecutor 's request for the protection of legality . It overturned the lower courts ' decisions and dismissed the applicant 's claim . It found that the lower courts had properly established the facts , but had incorrectly applied the substantive law . It found that at the time when the agreement had been concluded , the company had been registered as a financial institution authorised to enter into loan and savings agreements with physical persons . It stated , inter alia , that :

“ ... In accordance with ORG of DATE in force at that time , [ the company ] was authorised to accept savings in domestic currency from physical persons and to give loans to physical persons and sole proprietors . Inferences can be drawn that [ the company ] was not authorised to accept or to give loans in foreign currency to citizens . However , that law does not provide for nullity of such agreements nor does it prohibit the execution of such operations by savings institutions . Such operation of a savings institution is regulated by penalty provisions . It is undisputed that the agreement concluded between the parties [ the company and the applicant ] was voluntarily executed by [ the applicant ] ... “

The court rejected the lower courts ' reasoning that the agreement had been null and void , as the company had been registered and authorised to enter into such agreements irrespective of whether it had concerned foreign currency . It stated that that fact could have only influenced the execution of the agreement . It went on to conclude that the applicant could not have requested restoration of the money already paid to the company under the agreement , as the latter was a financial institution set up by virtue of law , the operation of which was authorised by ORG . Moreover , the scope of reference of the company was regulated by a law which could not have been unknown to the applicant .

The decision was served on the applicant on DATE .

On DATE ORG Instance granted the company 's request for enforcement of ORG decision . The money , which had already been transferred to the applicant , has been deducted from the latter 's pension in DATE instalments since then .

Section CARDINAL of LAW ( ORG за парничната постапка ) ( “ the Act ” ) provides that appeals on points of law must be submitted to the first - instance court in sufficient number of copies for the court , the opposing party and the public prosecutor .

Section CARDINAL of the LAW provides that , inter alia , the presiding judge of the first - instance court 's panel of judges shall communicate a copy of a timely , complete and admissible appeal on points of law to the opposing party and to the public prosecutor authorised to file a request for the protection of legality . According to paragraph CARDINAL of this section , the opposing party may , within DATE from the service of the appeal , lodge with the court a reply . According to paragraph CARDINAL , after receipt of the reply or after expiration of the time - limit for reply , the presiding judge of the first - instance court 's panel of judges shall transfer the appeal and any reply , together with the complete file , to the [ ORG ] through the second - instance court .

Section CARDINAL § CARDINAL of the LAW provides that [ ORG ] shall uphold the appeal on points of law and overturn the impugned decision if it finds that domestic law was wrongly applied .

LAW provides that ORG shall give a single decision if an appeal on points of law and a request for the protection of legality were submitted against the same decision .

Section CARDINAL of the LAW provides that , if not otherwise regulated , the above provisions likewise apply to a request for the protection of legality submitted by the public prosecutor .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by PERSON T. Gertner , a lawyer practising in Bad Ems .

A summary account of historical events in which the present application originated can be found in the ORG ’s decision on admissibility in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE .

In DATE the applicant and his family left their then place of residence , at present ORG in GPE , to escape the advancing ORG . They succeeded in reaching the NORP occupation zone in GPE . The region in which they lived before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG . PERSON , cited above , § CARDINAL ) .

They applicant submits that he and his family have still not been allowed to return to their home and have been refused restitution of their property

A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) .