David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE , the News of the World , a DATE newspaper owned by ORG , published on its front page an article headed “ FCARDINAL boss has sick NORP orgy with CARDINAL hookers ” . The article opened with the sentence , “ Formula CARDINAL motor racing chief PERSON is DATE exposed as a secret sadomasochistic sex pervert ” . Several pages inside the newspaper were also devoted to the story , which included still photographs taken from video footage secretly recorded by CARDINAL of the participants in the sexual activities , who was paid in advance to do so . An edited extract of the video as well as still images were also published on the newspaper ’s website and reproduced elsewhere on the internet . The print version of the newspaper invited readers to view the video , providing the website address of the newspaper .

DATE , the applicant ’s solicitors made a complaint to ORG the video footage available on the website . DATE , DATE , the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without QUANTITY notice . Such notice was given by letter dated DATE and faxed at TIME that day .

The edited video footage was viewed CARDINAL times over CARDINAL and DATE . The online version of the article was visited over CARDINAL times during the same period . The print version of ORG has an average circulation of CARDINAL copies .

On DATE the applicant commenced legal proceedings against ORG claiming damages for breach of confidence and invasion of privacy . Although he did not dispute that the sexual activities had taken place , he contested the characterisation of his activities as being NORP role - play . He also sought an injunction to restrain the News of the World from making available on its website the edited video footage .

On DATE a second series of articles on the applicant ’s sexual activities was published in ORG .

On DATE Mr Justice PERSON , in ORG , refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet .

In assessing the approach to be taken by the court to the granting of an interim injunction , he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by DATE , and where those rights came into conflict with the rights of other persons , and in particular the rights of the media to freedom of expression :

“ CARDINAL ... i ) No Convention right has , as such , precedence over another ;

ii ) Where conflict arises between the values safeguarded under ORG CARDINAL and CARDINAL , an ‘ intense focus’ is necessary upon the comparative importance of the specific rights being claimed in the individual case ;

iii ) The ORG must take into account the justification for interfering with or restricting each right ;

iv ) So too , the proportionality test must be applied to each . ”

He continued :

“ CARDINAL . Here there is no doubt that the rights of Mr PERSON under LAW come into conflict with those of ORG under LAW . CARDINAL question which has to be answered is whether , in respect of the information contained in the edited footage , Mr PERSON any longer has a reasonable expectation of privacy , having regard to everything which has happened since the original publication . ”

PERSON considered that there was no public interest in publication of the images powerful enough to override the applicant ’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs , observing :

“ CARDINAL . ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants . Insofar as the public was ever entitled to know about Mr PERSON ’s sexual tastes at all , the matter has already been done to death since the original coverage in ORG . There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage , at this stage , on the Respondent ’s website . ”

However , as to the extent of the applicant ’s reasonable expectation of privacy , PERSON noted that the material had been seen by CARDINAL of people around the world and that it continued to be available . He went on :

“ CARDINAL . ... The ORG must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless , a point may be reached where the information sought to be restricted , by an order of the ORG , is so widely and generally accessible ‘ in the public domain’ that such an injunction would make no practical difference .

As Mr Millar [ for ORG ] has pointed out , if someone wishes to search on the Internet for the content of the edited footage , there are various ways to access it notwithstanding any order the ORG may choose to make imposing limits on the content of ORG . ORG should guard against slipping into playing the role of ORG . Even though an order may be desirable for the protection of privacy , and may be made in accordance with the principles currently being applied by the courts , there may come a point where it would simply serve no useful purpose and would merely be characterised , in the traditional terminology , as a brutum fulmen . It is inappropriate for the ORG to make vain gestures . ”

He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference , noting :

“ CARDINAL . ... The dam has effectively burst . I have , with some reluctance , come to the conclusion that although this material is intrusive and demeaning , and despite the fact that there is no legitimate public interest in its further publication , the granting of an order against this Respondent at the present juncture would merely be a futile gesture . Anyone who wishes to access the footage can easily do so , and there is no point in barring ORG from showing what is already available . ”

The edited video footage was restored to ORG website shortly afterwards .

In the course of the subsequent privacy proceedings before ORG , the court heard evidence from the editor of ORG . As to the reasons for providing no advance warning to the applicant of the imminent publication of the story , the following exchange took place :

“ Q : Your third reason was the risk of an interim injunction , and that was the real reason , was it not ?

A : That was a major concern , yes .

Q : You were worried that the court might grant an injunction .

A : It was a consideration , yes .

Q : So you did recognise that there was a real risk that a court would take the view , on an interim basis , that this intrusion on privacy was not justified ?

A : It is a risk all newspapers are faced with DATE .

Q : What is the matter with letting the court make the decision ? Is that not the way democratic societies work ; that CARDINAL person says it is not an intrusion of privacy and the other says it is ? ... There is nothing wrong with an impartial judge looking at it is there ?

A : No . It happens a lot .

Q : But you were not prepared to risk that on this occasion ?

A : On this occasion . ”

On DATE judgment was handed down in the privacy proceedings .

Regarding the allegations in the articles that there was a NORP theme , PERSON noted that once the material had been obtained , it was not properly checked for NORP content and that the NORP was not even translated . Instead , those concerned were simply content to rely on general impressions , which PERSON considered to be “ hardly satisfactory ” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations , especially that of mocking the treatment given to concentration camp inmates . He was prepared to accept that the journalist responsible for the story and the editor thought there was a NORP element , not least because that was what they wanted to believe . He concluded :

“ CARDINAL . The belief was not arrived at , however , by rational analysis of the material before them . Rather , it was a precipitate conclusion that was reached ‘ in the round’ , as Mr PERSON [ the journalist ] put it . The countervailing factors , in particular the absence of any specifically NORP indicia , were not considered . When PERSON [ the editor ] was taken at length through CARDINAL of photographs , some of which he had seen prior to publication , he had to admit in the witness box that there were no NORP indicia and he could , of course , point to nothing which would justify the suggestion of ‘ mocking’ concentration camp victims . That conclusion could , and should , have been reached before publication . I consider that this willingness to believe in the NORP element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘ responsible journalism’ ... [ T]he judgment was made in a manner that could be characterised , at least , as ‘ casual’ and ‘ GPE . ”

PERSON went on to consider the newspaper ’s assessment , prior to publication , of the lawfulness of publishing the articles . He observed that , in the context of privacy , there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion . He considered that he was not in a position to accept the applicant ’s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed , nor could he conclude that they were genuinely indifferent to whether there was a public interest defence . While , he said , they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given , that was not the same as genuine indifference to the lawfulness of this conduct . He noted :

“ CARDINAL . It is also clear that CARDINAL of the main reasons for keeping the story ‘ under wraps’ until the last possible moment was to avoid the possibility of an interlocutory injunction . That would avoid delaying publication and , in a privacy context , would generally mean that a potential claimant would not trouble to institute any legal proceedings at all . Once the cat is out of the bag , and the intrusive publication has occurred , most people would think there was little to gain . Even so , it would not be right to equate such tactics with deliberately or recklessly committing a wrong . ”

PERSON concluded that the newspaper articles and images constituted a breach of the applicant ’s right to privacy . He found that there were no NORP connotations in the applicant ’s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images .

On the question of damages , PERSON declined to award exemplary damages and limited the damages available to a compensatory award . He considered it questionable whether deterrence should have a distinct , as opposed to a merely incidental , role to play in the award of compensatory damages , noting that it was a notion more naturally associated with punishment . He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall . He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant . Any award against ORG would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “ chilling effect ” on freedom of expression .

PERSON recognised that the sum awarded would not constitute adequate redress , noting :

“ CARDINAL . ... I have already emphasised that injury to reputation is not a directly relevant factor , but it is also to be remembered that libel damages can achieve CARDINAL objective that is impossible in privacy cases . Whereas reputation can be vindicated by an award of damages , in the sense that the claimant can be restored to the esteem in which he was previously held , that is not possible where embarrassing personal information has been released for general publication . As the media are well aware , once privacy has been infringed , the damage is done and the embarrassment is only augmented by pursuing a court action . Claimants with the degree of resolve ( and financial resources ) of Mr PERSON are likely to be few and far between . Thus , if journalists successfully avoid the grant of an interlocutory injunction , they can usually relax in the knowledge that intrusive coverage of someone ’s sex life will carry no adverse consequences for them and ( as Mr PERSON put it in his DATE email ) that the news agenda will move on .

Notwithstanding all this , it has to be accepted that an infringement of privacy can not ever be effectively compensated by a monetary award . Judges can not achieve what is , in the nature of things , impossible . That unpalatable fact can not be mitigated by simply adding QUANTITY to the number first thought of . Accordingly , it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party . That is all that can be done in circumstances where the traditional object of restitutio is not available . At the same time , the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused . ”

The applicant was awarded GBP CARDINAL in damages and recovered approximately GBP CARDINAL in costs . The judge noted that the applicant was hardly exaggerating when he said that his life was ruined . A final injunction was granted against the newspaper .

ORG ( “ ORG ” ) is an independent body set up to examine complaints about the editorial content of newspapers and magazines , and their websites , in GPE . If a complaint is upheld , a public ruling will be issued by the ORG and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence .

On DATE the ORG upheld a complaint by PERSON that ORG had published an article about him which was inaccurate , in breach of clause CARDINAL of LAW ( see further paragraph CARDINAL below ) . The newspaper had failed to approach him for comments prior to publication . In its adjudication , the ORG noted :

“ The [ ORG ] has previously said that failure to contact the subjects of articles before publication DATE while not obligatory – may constitute a lack of care under LAW in some circumstances . It has never said that people have no right ever to comment on a story , or to be offered a right of reply , if they have misled people in another context .

The [ ORG ] was also aware of the newspaper ’s concerns about an undeserved injunction being granted . However , it did not consider that this meant that the requirements of the Code did not apply . Given the nature of the story , and how the newspaper wished to present it , the inclusion of the complainant ’s comments was necessary to avoid breaching the Code .

It has never been an absolute requirement for newspapers to contact those who are about to feature in articles . This would be impractical for a number of reasons : often there will be no dispute about the facts , or the information will be innocuous ; the volume of people mentioned in straightforward stories would make it impossible ; and legitimate investigations might on some occasions be compromised by such a rule . However , in this case the newspaper made the wrong decision and the complaint was upheld . ”

The ORG is responsible for ratifying and enforcing LAW ( “ the FAC ” ) . LAW is regularly reviewed and amended as required . Clause CARDINAL of the Editors’ Code provides , inter alia , that the press must take care not to publish inaccurate , misleading or distorted information , including pictures .

Clause CARDINAL of the Editors’ Code deals with privacy . At the relevant time , it provided as follows :

“ CARDINAL . * Privacy

i ) Everyone is entitled to respect for his or her private and family life , home , health and correspondence , including digital communications . Editors will be expected to justify intrusions into any individual ’s private life without consent .

ii ) It is unacceptable to photograph individuals in a private place without their consent .

Note - Private places are public or private property where there is a reasonable expectation of privacy . ”

Clause CARDINAL of the Editors’ Code sets out provisions on clandestine recordings :

“ CARDINAL * Clandestine devices and subterfuge

i ) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices ; or by intercepting private or mobile telephone calls , messages or emails ; or by the unauthorised removal of documents or photographs ; or by accessing digitally - held private information without consent .

ii ) Engaging in misrepresentation or subterfuge , including by agents or intermediaries , can generally be justified only in the public interest and then only when the material can not be obtained by other means . ”

At the relevant time , the “ public interest ” was explained in LAW as follows :

“ There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest .

The public interest includes , but is not confined to :

i ) Detecting or exposing crime or serious impropriety .

ii ) Protecting public health and safety .

iii ) Preventing the public from being misled by an action or statement of an individual or organisation .

There is a public interest in freedom of expression itself .

Whenever the public interest is invoked , the ORG will require editors to demonstrate fully how the public interest was served .

The ORG will consider the extent to which material is already in the public domain , or will become so .

Paragraph CARDINAL was amended in DATE to provide :

“ Whenever the public interest is invoked , the ORG will require editors to demonstrate fully that they reasonably believed that publication , or journalistic activity undertaken with a view to publication , would be in the public interest . ”

The FAC accompanies the Editors’ Code and is intended to provide guidance as to compliance with the PERSON ’s provisions . It underwent major revision in DATE , providing updates on prior notification and “ public interest ” . As regards prior notification , it now explains :

“ There is wide agreement that prior notification of the subjects of stories ahead of publication , while often desirable , could not DATE and should not – be obligatory . It would be impractical , often unnecessary , impossible to achieve , and could jeopardise legitimate investigations . Yet , at the same time , a failure to include relevant sides of the story can lead to inaccuracy and breach the LAW . The ORG has set out guidance on how to square this circle :

If there is no doubt about the story ’s truth , it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of ORG CARDINAL of the Code [ on accuracy ] ;

Where information has come from a source ( especially an anonymous one ) , it may be prudent to seek the ‘ other side of the story’ before the article appears ;

As to the “ public interest ” test , the ORG notes :

“ In judging ORG claims that otherwise prohibited information or methods were justifiable in the public interest , both the PERSON and the ORG set high thresholds . The burden is on the editor to demonstrate fully how the public interest was served . ”

It provides details of previous rulings of the ORG on the question of the “ public interest ” and identifies key questions as :

“ Was it reasonable to believe that publication or journalistic activity would have served the public interest ? The ORG would require a full explanation showing that the grounds were genuine and sound in the circumstances .

If clandestine methods , subterfuge , harassment or payments to criminals or witnesses are involved , could the information have been obtained by other means ?

Is the information in the public domain , or likely to become so ?

If children are involved , is the public interest in publication exceptional ? ”

Broadcasters are subject to ORG ( “ the Ofcom Code ” ) . Section CARDINAL of the Ofcom Code deals with fairness and provides , inter alia :

“ CARDINAL Before broadcasting a factual programme , including programmes examining past events , broadcasters should take reasonable care to satisfy themselves that :

anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute . ”

Principle CARDINAL of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes .

Under LANGUAGE law , a number of remedies are available in cases of misuse of private information . An injunction can be sought to restrain publication of the private material . Damages are also available to compensate for the injury caused by any intrusive publication , including aggravated damages where additional features of the intrusion or the defendant ’s post - publication conduct makes the original injury worse . An alternative to damages is an account of the profits made by the defendant . The court can also order delivery - up of the offending material .

Further protection is offered by LAW , which makes provision for the regulation of the processing of information relating to individuals , including the obtaining , holding , use or disclosure of such information . It sets out in a schedule CARDINAL data protection principles which must be observed by data controllers in GPE . These principles include the principles that personal data shall be processed fairly and lawfully ; that personal data shall be obtained only for CARDINAL or more specified and lawful purposes ; that personal data shall be adequate , relevant and not excessive in relation to the purpose for which they are processed ; that personal data shall be accurate and up to date ; and that personal data shall be processed in accordance with the rights of data subjects under LAW . Further requirements are stipulated in respect of “ sensitive personal data ” , which includes information as to a person ’s sexual life .

However , section CARDINAL ) of the LAW provides a “ public interest ” exemption from the data protection principles where information is processed for journalism purposes :

“ Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—

( a ) the processing is undertaken with a view to the publication by any person of any journalistic , literary or artistic material ,

( b ) the data controller reasonably believes that , having regard in particular to the special importance of the public interest in freedom of expression , publication would be in the public interest , and

( c ) the data controller reasonably believes that , in all the circumstances , compliance with that provision is incompatible with the special purposes . ”

Section CARDINAL defines “ the special purposes ” as including the “ purposes of journalism ” . Section CARDINAL ) provides that the exemption relates to the data protection principles , except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of , or damage to , personal data . Section PERSON ) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest .

Section CARDINAL of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the LAW and section CARDINAL allows him to apply for rectification , erasure or destruction of personal data .

The position as regards interim injunctions under LANGUAGE law was set out in the case of ORG v. PERSON ( [ DATE ] Appeal Cases CARDINAL ) . In particular , a claimant seeking an interim injunction was required to show that he had a “ seriously arguable case ” to be tried . Once this had been shown , it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages . If there were doubts as to the adequacy of a remedy in damages , the preservation of the status quo often prevailed , with the result that an interim injunction would be granted .

The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of LAW DATE . LAW provides :

“ ( CARDINAL ) This section applies if a court is considering whether to grant any relief which , if granted , might affect the exercise of the Convention right to freedom of expression .

( CARDINAL ) If the person against whom the application for relief is made ( ‘ the respondent’ ) is neither present nor represented , no such relief is to be granted unless the court is satisfied—

( a ) that the applicant has taken all practicable steps to notify the respondent ; or

( b ) that there are compelling reasons why the respondent should not be notified .

( CARDINAL ) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed .

( CARDINAL ) The court must have particular regard to the importance of the Convention right to freedom of expression and , where the proceedings relate to material which the respondent claims , or which appears to the court , to be journalistic , literary or artistic material ( or to conduct connected with such material ) , to—

( a ) the extent to which—

( i ) the material has , or is about to , become available to the public ; or

( ii ) it is , or would be , in the public interest for the material to be published ;

( b ) any relevant privacy code . ”

The effect of LAW , in particular section CARDINAL(CARDINAL ) , was considered by ORG and others v. PERSON and others [ DATE ] ORG CARDINAL . Lord PERSON of GPE observed that :

“ CARDINAL . When LAW was under consideration by ORG concern was expressed at the adverse impact the PERSON might have on the freedom of the press . LAW , guaranteeing the right to respect for private life , was among the Convention rights to which the legislation would give effect . The concern was that , applying the conventional NORP Cyanamid approach , orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under LAW . Section CARDINAL(CARDINAL ) was enacted to allay these fears . Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage . It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the NORP Cyanamid guideline of a ‘ serious question to be tried’ or a ‘ real prospect’ of success at the trial . ”

He concluded that :

“ CARDINAL . Section CARDINAL(CARDINAL ) makes the likelihood of success at the trial an essential element in the court ’s consideration of whether to make an interim order . But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section CARDINAL(CARDINAL ) must depend on the circumstances . There can be no single , rigid standard governing all applications for interim restraint orders . Rather , on its proper construction the effect of section CARDINAL(CARDINAL ) is that the court is not to make an interim restraint order unless satisfied the applicant’‘sufficiently favourable’ , the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ( ‘ more likely than not’ ) succeed at the trial . In general , that should be the threshold an applicant must cross before the court embarks on exercising its discretion , duly taking into account the relevant jurisprudence on article CARDINAL and any countervailing Convention rights . But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite . Circumstances where this may be so include those mentioned above : where the potential adverse consequences of disclosure are particularly grave , or where a short - lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal . ”

Subsequently , in PERSON ( [ DATE ] EWCA Civ CARDINAL ) , ORG noted :

“ CARDINAL . Of course , as recently emphasised by ORG [ DATE ] CARDINAL WLR CARDINAL , a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test , in light of section CARDINAL ) of LAW DATE . ”

On DATE ORG , ORG ( “ the ORG ” ) published a report on Press standards , privacy and libel ( CARDINALnd Report of Session DATE , ORG CARDINAL-I ) . The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders , including the applicant and the editor of ORG . A chapter of the report was dedicated to examining privacy and breach of confidence . As regards the evidence received on the need for a rule of pre - notification , the report noted :

“ CARDINAL . In his own case , Mr PERSON stated that he would certainly have sought an injunction if he had had advance notification of ORG intention to publish . PERSON [ the editor of ORG ] told us that he and his colleagues at the newspaper were conscious of this : ‘ we knew that probably PERSON PERSON would get an injunction , and I felt very strongly that this was a story that actually should not be stopped because of an GPE . ”

According to the evidence received by ORG , journalists contacted the subjects of their articles prior to publication in the great majority of cases . However , there was some evidence before ORG that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication . The report noted :

“ CARDINAL . Clearly pre - notification , in the form of giving opportunity to comment , is the norm across the industry . Nevertheless we were surprised to learn that the ORG does not provide any guidance on pre - notification . Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting , and there needs to be explicit provision in the ORG Code itself . ”

ORG recommended that LAW be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication , subject to a “ public interest ” exception , and that guidance for journalists and editors on pre - notifying should be included in FAC .

As to the need for a legally binding pre - notification requirement , ORG concluded that :

“ CARDINAL . ... a legal or unconditional requirement to pre - notify would be ineffective , due to what we accept is the need for a ‘ public interest’ exception . Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of LAW . We therefore recommend that ORG should amend LAW to make failure to pre - notify an aggravating factor in assessing damages in a breach of LAW . We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information . ”

On DATE , ORG of ORG adopted LAW , containing a declaration on mass communication media and human rights . As regards the duty of the press to act responsibly , the declaration indicated that it would be desirable to put in place :

“ ( a ) professional training for journalists under the responsibility of editors and journalists ;

( b ) a professional code of ethics for journalists ; this should cover inter alia such matters as accurate and well balanced reporting , rectification of inaccurate information , clear distinction between reported information and comments , avoidance of calumny , respect for privacy , respect for the right to a fair trial as guaranteed by LAW ;

( c ) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self - control by the press itself . ”

NORP The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by LAW , and that the exercise of the former right should not be allowed to destroy the existence of the latter . It observed that the right to privacy consisted essentially in the right to live one ’s own life with a minimum of interference and concerned private , family and home life , physical and moral integrity , honour and reputation , avoidance of being placed in a false light , non - revelation of irrelevant and embarrassing facts , unauthorised publication of private photographs , protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially . The declaration also stated that the right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media , and that national legislation should guarantee this protection

On DATE ORG adopted a further resolution , Resolution CARDINAL , on the right to privacy , focusing on public figures . The ORG noted that personal privacy was often invaded , even in countries with specific legislation to protect it , as people ’s private lives had become a highly lucrative commodity for certain sectors of the media . It continued :

“ CARDINAL . It is often in the name of a CARDINAL - sided interpretation of the right to freedom of expression , which is guaranteed in LAW , that the media invade people ’s privacy , claiming that their readers are entitled to know everything about public figures .

Certain facts relating to the private lives of public figures , particularly politicians , may indeed be of interest to citizens , and it may therefore be legitimate for readers , who are also voters , to be informed of those facts .

It is therefore necessary to find a way of balancing the exercise of CARDINAL fundamental rights , both of which are guaranteed in LAW : the right to respect for one ’s private life and the right to freedom of expression .

The resolution reaffirmed the importance of every person ’s right to privacy and of the right to freedom of expression as fundamental to a democratic society . It noted that these rights were neither absolute nor in any hierarchical order , since they were of equal value . Further , the right to privacy afforded by LAW protection against interference by private persons or institutions , including the mass media . The resolution also set out specific guidelines on the necessary content of national legislation :

“ i. the possibility of taking an action under civil law should be guaranteed , to enable a victim to claim possible damages for invasion of privacy ;

ii . editors and journalists should be rendered liable for invasions of privacy by their publications , as they are for libel ;

iv . economic penalties should be envisaged for publishing groups which systematically invade people ’s privacy ;

vii . provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings , such as summary applications for an interim order or an injunction postponing the dissemination of the information , subject to an assessment by the court as to the merits of the claim of an invasion of privacy ;

viii . the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published . ”

On DATE Resolution CARDINAL ( DATE ) on indicators for media in a democracy was adopted by ORG . It recalled the importance of freedom of expression of the press in a democracy and called on member GPE to assess their national media legislation bearing in mind the basic principle that there should be a system of media self - regulation including a right of reply and correction or voluntary apologies by journalists and that journalists should set up their own professional codes of conduct and that they should be applied .

At the Sixth European Ministerial Conference on Mass Media Policy in GPE , DATE , the participating Ministers adopted a declaration on “ A media policy for DATE ” . In the declaration , the representatives of ORG agreed on a programme of action at pan - NORP level , to be implemented by ORG on ORG ( “ CDMM ” ) . The programme of action included the following provisions :

“ ORG relating to the balance between freedom of expression and information and other rights and legitimate interests

The CDMM should :

- step up its work on the balance between freedom of expression and information and the right to privacy ;

- complete the work on the disclosure of information and the expression of opinions about political figures and public officials , the disclosure of information in the public interest , as well as media reporting on legal proceedings , so as to define common orientations for the whole of LOC as speedily as possible ;

- examine the problems caused by the dissemination of material casting doubt on ORG dignity and integrity , even in the traditional media ;

- examine the implications of the on - line dissemination of information by individuals or other sources which may not be bound by professional journalistic ethics or codes of conduct . ”

Following the adoption of the programme of action , the CDMM established a ORG on freedom of expression and other fundamental rights ( “ GPE ” ) . FAC prepared a draft declaration of ORG on freedom of expression and the right to respect for private life which was reviewed by the CDMM at its meetings of DATE and DATE . However , the CCDM did not invite ORG to adopt the declaration .

According to the information provided by the parties or otherwise available to the ORG , there is no pre - notification requirement as such in any of the legal systems of the Contracting Parties . However , some member GPE require the subject ’s consent to publication of material relating to private life , in many cases subject to some form of “ public interest ” exception . Thus the failure to obtain consent may have legal consequences in any subsequent civil proceedings commenced by the subject of the publication .

A number of member GPE have adopted codes of practice , generally not binding , which also contain some form of consent requirement .

The ORG Directive was adopted in order to ensure adequate protection for personal data . It applies to the CARDINAL Member States of ORG . It was transposed in GPE through LAW ( see paragraphs DATE above ) . There is no reference in the ORG Directive to the need to provide for a pre - notification requirement in privacy cases .


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

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

Following the privatisation of the public institute where he was employed as an inspector , on DATE the applicant was appointed to a new post at ORG for the ORG ( ORG ) .

On DATE the applicant brought a case before ORG against ORG and ORG to challenge his appointment .

On DATE the administrative court dismissed the applicant 's request , holding that his appointment had been effected in accordance with the relevant domestic law .

On DATE ORG upheld the decision of the administrative court and on DATE it rejected the applicant 's rectification request .


The applicant , PERSON , is a NORP national , born in DATE and living in GPE . He is represented before the ORG by ORG , a firm of solicitors practising in GPE . The respondent Government are represented by their Agent , Mr. C. Whomersley of ORG .

At the time of the events in question the applicant was a soldier in ORG , holding the rank of Craftsman in the CARDINALth ORG of ORG and ORG . In DATE the applicant ’s regiment were on a tour of duty in GPE . On TIME CARDINAL September CARDINAL an altercation took place in a transit accommodation block between the applicant and another soldier , witnessed by CARDINAL others . Statements were taken from the witnesses , but these were subsequently destroyed in view of the fact that the regiment was shortly to return to GPE where the incident would be investigated by the military police .

Following the investigation , the applicant was charged with assault occasioning actual bodily harm , contrary to section CARDINAL of the Army Act DATE ( see below ) . He pleaded not guilty on grounds of self - defence . His case was heard before a district court martial held at GPE DATE and DATE . The applicant was legally represented at , and subsequent to , the hearing . The court martial consisted of CARDINAL military officers and an Assistant Judge Advocate General . The applicant was found guilty and , on DATE , he was sentenced to CARDINAL months’ detention and ordered to undergo stoppages of pay until he had made good the sum of GBP CARDINAL by way of compensation to the victim of the assault . A petition for review of the finding and sentence of DATE was refused by ORG on DATE .

The applicant applied for leave to appeal against conviction to ORG on DATE , on the grounds that the trial judge had been wrong to allow the trial to continue given the destruction of the witness statements , and that the conviction was therefore unsafe and unsatisfactory . Leave to appeal against conviction was granted by a single judge on DATE . The appeal was dismissed on CARDINAL DATE .

Between his conviction and the hearing of his appeal , the applicant was detained in ORG . Under the Army Act DATE as amended by LAW ( which came into force on DATE ) , neither the district court martial nor ORG nor ORG had any power to grant the applicant bail pending the determination of his appeal .

Section CARDINAL of the Army Act DATE ( “ the DATE LAW ) renders offences under ordinary criminal law committed by members of the armed services offences against military law . Offences against military law are tried by way of court martial .

Section CARDINAL of the CARDINAL Act ( as amended by the armed Forces Act CARDINAL ) provides ( as relevant ) :

“ CARDINAL.(CARDINAL ) Where a court - martial has found the accused guilty of any offence , the accused may ... present a petition to ORG against finding or sentence or both .

( CARDINAL ) The reviewing authority shall ... review any finding of guilt made , and sentence passed , by a court martial . ...

( CARDINAL ) For the purposes of this LAW the reviewing authority is -

( a ) ORG ; or

( b ) any officer to whom all or any of the powers of ORG as reviewing authority may be delegated by ORG . ”

Under section CARDINAL of the CARDINAL Act , a court martial on passing sentence , or the reviewing authority acting under LAW above , may order that a sentence be suspended . Under section CARDINAL ) of the LAW , where a sentence has been suspended before committal to detention it shall not begin to run until the suspension is determined .

Under section CARDINALA of LAW , a court martial on passing sentence , or the reviewing authority acting under LAW above , may alternatively order that a sentence be postponed until DATE specified in the order . In the event of such an order , the sentence continues to run from the date on which it was pronounced , but does not have effect throughout the period of postponement .

Section CARDINAL of LAW DATE provides ORG with a power to grant bail to a civilian appellant in a criminal case pending the hearing of his appeal .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . When lodging his application , he was detained in GPE . He was represented before the ORG by Mr J. Rieger , a lawyer practising in GPE .

Following his criminal conviction the applicant was detained from DATE until DATE in the ORG prison . DATE and DATE he was remanded for TIME per day in a cell which measured QUANTITY together with CARDINAL further persons . The cell ’s window could not be opened . From DATE until DATE he was detained in a different cell which measured QUANTITY with CARDINAL more persons , but could leave that cell for TIME every day . There was hardly any space to walk , as both cells were equipped with beds , a table , chairs , a wardrobe and a wash basin . The toilet was located within the cell and was merely separated from the room by a curtain . There was no ventilation and insufficient airing .

The applicant claimed to have lodged CARDINAL motions with the SuhlGoldlauter prison to be transferred to a single cell . In reply , the prison staff explained to him that he did not have a right to be transferred .

On DATE the applicant applied for legal aid so as to lodge before ORG an official liability action for payment of damages against the Land of GPE according to section CARDINAL of LAW ( see ‘ Relevant domestic law and ORG , below ) . He claimed that the conditions of his detention in the ORG prison , notably the lack of space and airing and the constant deprivation of privacy even when using the toilet , had been degrading and had disregarded human dignity and ORG CARDINAL and CARDINAL of the Convention . These circumstances had further led to health problems such as constant stress , eating and sleeping disorders , stomach troubles and strong headaches .

The applicant argued that it had not been possible for him to avert the damage incurred as prescribed by section CARDINAL § CARDINAL of the Civil Code while he was being detained in the ORG prison by applying for judicial review . Upon his complaints to the prison staff about his conditions of detention he had been informed that these were lawful , and he had not been instructed that he could lodge a motion for judicial review . He had not had sufficient means to mandate a lawyer while in prison .

On DATE the Land of Thuringia requested the dismissal of the applicant ’s motion to be granted legal aid . It submitted that the applicant ’s detention together with CARDINAL further persons in one cell had been lawful . Pursuant to section CARDINAL § CARDINAL of the Execution of Sentences Act , read in conjunction with section CARDINAL no . CARDINAL of the Execution of Sentences Act ( see ’Relevant domestic law and ORG , below ) , a temporary placement of several persons in one cell was permitted if this was indispensable , as was the case at the time of the applicant ’s detention . According to the defendant , the cells measured QUANTITY and QUANTITY respectively , and as their length was QUANTITY the toilet was QUANTITY away from the dining table . The Land further contested that the applicant had been obliged to stay in the cell for TIME per day .

On DATE the ORG dismissed the applicant ’s motion to be granted legal aid . It found that the applicant ’s intended action for payment of damages had no sufficient prospects of success and appeared wanton . A possible damages claim was excluded pursuant to section CARDINAL § CARDINAL of LAW . The applicant had failed to avert the alleged damage by lodging a motion for judicial review of his conditions of detention under section CARDINAL of LAW ( see ‘ Relevant domestic law and ORG , below ) while detained in the ORG prison , if necessary after having obtained legal advice .

On DATE the applicant , meanwhile represented by counsel , lodged an appeal . He argued in particular that a motion for judicial review to ORG under section CARDINAL of LAW would have had no prospects of success . Prior to the decision of ORG of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL , see ‘ Relevant domestic law and ORG , below ) the regional courts in GPE had dismissed all motions for judicial review concerning the refusal of prison authorities to transfer detainees to a single cell for lack of space in the GPE prisons . The applicant could not have averted the damage incurred , not least because the proceedings before ORG would have taken DATE during which he was being remanded in the impugned conditions of imprisonment .

On DATE the ORG dismissed the applicant ’s appeal . It agreed with ORG that the applicant had lost his damages claim in accordance with section CARDINAL § CARDINAL of LAW as he had failed to avoid the alleged damage by lodging a motion for judicial review under section CARDINAL of LAW .

ORG found that there would be no causal link between the failure to lodge a motion for judicial review and the damage incurred where such a motion clearly had no prospects of success . It conceded that , at the relevant time , the regional courts had repeatedly dismissed motions for judicial review concerning the placement of several detainees in one cell . However , it was crucial how the applicant ’s motion under section CARDINAL of LAW should have been correctly decided , having regard to the particular circumstances of his case . In ORG view , a motion for judicial review lodged by the applicant during his detention , assuming that the alleged particular conditions of detention proved to be true , would have had prospects of success . It had been lawful to place the applicant in a cell together with other detainees ( section CARDINAL no . CARDINAL of the Execution of Sentences Act ) . However , the conditions of his detention in the cell suggested that there had been a violation of his personality rights . Therefore , it was possible that a prompt motion for judicial review , in accordance with the case - law of ORG , would have resulted in a finding that his conditions of detention disregarded human dignity which in turn would have led to a change in these conditions .

On DATE the applicant lodged a complaint with ORG . He complained in particular that ORG had conceded , on the one hand , that at the time of his detention the regional courts had repeatedly dismissed motions for judicial review lodged against similar prison conditions . On the other hand , ORG had found that the regional courts might have granted a motion lodged by the applicant for judicial review and therefore considered his claim for damages to be excluded . This was arbitrary . It was uncontested that there had not been any space in the ORG prison to transfer the applicant to a single cell . Therefore , a motion for judicial review would not have had any prospects of success . Moreover , the applicant claimed that he had been treated less favourably than other prisoners who had been detained in comparable conditions . He argued that the civil courts in other ORG had granted actions for payment of damages without the plaintiffs having previously brought a motion for judicial review of their imprisonment conditions while in detention .

On DATE ORG refused to admit the applicant ’s constitutional complaint as it had no prospects of success . The ORG impugned decision was not based on a violation of the applicant ’s rights guaranteed by LAW .

Pursuant to section CARDINAL § CARDINAL of the Civil Code , taken in conjunction with LAW of LAW , an individual has the right to be compensated by the ORG for any damage arising from a breach of official duty committed by an official . However , the obligation to afford redress shall not arise where the injured party has wilfully or negligently omitted to avoid the damage by means of a legal remedy ( section CARDINAL § CARDINAL of LAW ) .

Section CARDINAL § CARDINAL of the Execution of Sentences Act ( Strafvollzugsgesetz ) provides that a motion for judicial review may be lodged ( with ORG , see section CARDINAL of the said Act ) against measures concerning the conditions of detention .

Pursuant to section CARDINAL § CARDINAL of the Execution of Sentences Act a detainee may only temporarily and for compelling reasons be placed in the same cell with other prisoners during the rest period . Section CARDINAL of the Execution of Sentences Act contains transitional arrangements for prisons the construction of which was started before DATE . In particular , according to section CARDINAL no . CARDINAL of the Execution of Sentences Act and in derogation of section CARDINAL , the placement of several prisoners in one cell during the rest period is permitted if this is necessary in view of the limited space available in prison .

Pursuant to section CARDINAL § CARDINAL of the Code of Civil Procedure representation by counsel is compulsory for the parties in civil proceedings before ORG , ORG and ORG .

The conditions for legal aid are laid down in section CARDINAL of the Code of Civil Procedure . According to that section , a party who in view of his or her personal and economic situation can not afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton ( mutwillig ) . A party who has been granted legal aid is officially appointed a lawyer of his or her choice who is ready to represent him or her if representation by counsel is compulsory ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) . It is the court having jurisdiction to deal with the intended action itself which is called to decide on motions for legal aid ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) . An appeal lies against a decision refusing legal aid ( section CARDINAL § CARDINAL of the Code of Civil Procedure ) .

In its decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , ORG quashed the decisions of the criminal courts reviewing a prisoner ’s conditions of detention . The petitioner had been placed for DATE during TIME per day together with another person in a cell measuring QUANTITY . The toilet was located in the cell without any partition from the remainder of the room . The court found , in particular , that it was irrelevant that , possibly , the petitioner had not complained about his temporary placement in the said cell while in detention , as the authorities had to respect his human dignity irrespective of whether or not he complained about his treatment .


The applicant , PERSON , is an NORP national , born in DATE in GPE ( GPE ) . He is currently detained in GPE , where he is serving a sentence of CARDINAL years’ imprisonment .

He is represented before the ORG by PERSON and Mr. PERSON , who are both lawyers , practising respectively in GPE and GPE .

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

A warrant of arrest against the applicant and CARDINAL co - accused was issued at DATE at the request of the public prosecutor of GPE following investigations into drug trafficking . While many co - accused were arrested on DATE , the applicant escaped arrest .

The trial commenced on DATE before ORG . During this initial stage of the proceedings the applicant was tried in absentia .

The applicant was arrested on DATE in GPE . He was brought to trial with CARDINAL co - accused and was charged with being at the head of an armed criminal organisation dealing with drug trafficking .

At the DATE hearing , at which only the applicant ’s lawyer was present , a co - accused , ORG , participated by means of a video - conference and confirmed the contents of a tape and of some other written documents previously sent by himself to the police . In the statements ORG asserted that the applicant was at the head of the organisation . He refused to answer any other questions . The applicant ’s lawyer did not react .

On DATE ORG sentenced the applicant to DATE imprisonment , the grounds for the decision being :

the reports of the NORP ( military corps also carrying out police duties ) confirming the applicant ’s participation in meetings with other members of the organisation ;

the recordings obtained by tapping the houses of the applicant and of the co - defendants and tapping their telephones , from which it appeared that a drug - trafficking organisation existed and that the applicant had a prominent position in it ;

the tape - recorded statements made by ORG ( supporting evidence ) .

The following further elements against the applicant were considered : the fact that , although officially he had a job , he never appeared to be working , thus it was not clear where his income came from ; the fact that some relatives of his had already been arrested for drug trafficking ; the fact that the co - accused , and , remarkably , those older than him , would address him using " voi " , a typical form of respect towards those in command in mafia - like organisations .

On DATE the applicant filed an appeal with ORG of PERSON on several grounds , notably :

that the recorded conversations were in the dialect spoken in GPE and that the translations from that dialect into NORP were unreliable ( the translator was a policeman and therefore , according to the applicant , he could not be considered as an independent expert and furthermore it was not proved that he could understand the dialect ) ; besides , the applicant alleged that the recordings had not been properly transcribed as in several parts they had actually been summarised ; the applicant asked for a comparison of voices to ascertain whether his was the same as the one in the recordings ;

that the statements made against him by the co - defendant had been considered evidence even though tape - recorded , i.e. without an actual testimony given in court ; therefore the applicant explicitly asked ORG to arrange a direct confrontation with his accuser ;

that there was not sufficient evidence for considering the applicant as being at the head of the organisation .

ORG of PERSON dismissed the applicant ’s requests for a voice comparison and for a direct confrontation with the co - accused ( ORG ) .

On DATE ORG upheld the judgment of ORG , with the exception of CARDINAL count of aggravation , which led to a sentence of CARDINAL years’ imprisonment . The judgment of ORG was based mainly on the reports made by the NORP . According to these reports , the applicant had been seen by several NORP officials taking part in meetings with the other members of the organisation , both at the applicant ’s apartement and in other places . Besides , electronic surveillance during such meetings had permitted to ascertain that their purpose was closely related to drug trafficking . Thus , during the recorded conversations reference was made inter alia to : a previous transfer of cocaine ; the transfer of CARDINAL guns ; QUANTITY of “ stuff ” ( roba ) that CARDINAL of the members would “ cut ” ; the transfer of significant amounts of money ; the criticism against the delay in the delivery of some “ stuff ” , increasing the risk of an arrest . Even though the poor quality of the registrations from the electronic surveillance did not allow to determine to whom each phrase recorded was to be attributed , ORG considered that the participation of the applicant in such meetings , eyewitnessed by several NORP officials who all recognised the applicant , and their scope , resulting from the electronic surveillance , was sufficient to prove that the applicant was a member of the organisation . Furthermore , the ORG pointed out that the testimony by another witness , ORG , concerning the applicant ’s behaviour , confirmed the leading position of the applicant within the organisation and that the declarations made by ORG suggested that the organisation became very dynamic after the applicant had joined in .

As to the complaints about the translation and transcription of the recordings , ORG held that there was no reason to question the translator ’s impartiality and his knowledge of the dialect , that he was not alone in carrying out the task , thus others could verify the accuracy of the operations , that the translator was not asked for a proper translation since the main part of the recordings consisted of numbers and short sentences understandable by an NORP - speaking person , the translation being necessary only to comprehend some of the more obscure passages , and that the right of the defendants to ask for a copy of the recordings and to verify , on their own or through other experts , the exactitude of the translations and transcripts was never restricted .

As to the request for a voice comparison , ORG maintained that , ORG having ordered a voice comparison at an early stage of the proceedings and the vast majority of the defendants having refused to cooperate to that end , the refusal of the ORG to grant a second voice comparison could not be criticised , also in view of the considerable amount of time it would require .

As far as the complaint related to the accusatory tape - recorded statements by ORG , ORG stated that despite the fact that the suspicious behaviour of ORG called for great caution , the fact that the tape was listened to at a hearing at which ORG was present - although by means of a video - conference - and that he confirmed his statements , was sufficient as to his credibility , also considering that previous statements made by him had been confirmed in the course of the investigations . The court added that these statements were not considered as the main evidence but only as supporting evidence .

Finally , as to the lack of impartiality of the ORG due to the fact that some of the judges who decided his case had also sat on the ORG which reviewed the regularity of the detention on remand of some of his co - defendants , ORG stated that the relevant provisions of the LAW of criminal procedure did not rule out this possibility and added that ORG had already considered that no issue in this respect arose in the light of LAW . ORG added that the situation the applicant complained of was not in breach of LAW , given that it limits itself to provide that “ everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... ” .

The applicant appealed to ORG against the above judgment . He complained inter alia about the lack of impartiality of the first instance judges , of the fact that the experts charged with transcribing the results of the telephone tapping and electronic surveillance relied upon the rough notes drafted by the police and also of the fact that the records were “ translated ” into NORP from the dialect of GPE by a policeman . ORG , in a decision dated DATE , dismissed the appeal , maintaining that the way in which ORG had assessed the evidence was a matter of discretion provided that it was based on logical arguments , which , in ORG view , was the case . As to ORG ’s statements , ORG underlined that ORG had not given them an important weight .

Concerning the alleged lack of impartiality of ORG , ORG reiterated the arguments put forward by ORG , based on the relevant provisions of the LAW of criminal procedure as well as on ORG case - law . As far as the recordings were concerned , ORG noted that the experts had personally re - listened to the recordings without relying exclusively on the rough notes made by the police . Finally , as to the translation of the records the ORG held that apart from the fact that there was nothing suggesting that the police officer was not competent to translate , the applicant had not availed himself of the possibility of checking the translation by requesting copies of the recordings pursuant to article CARDINAL § CARDINAL of the Code of criminal procedure .


CASE OF PAYKAR YEV HAGHTANAK LTD v. ARMENIA

Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed

The applicant is a private small - scale trading company which has its registered office in GPE .

On DATE ORG conducted an inspection of the applicant company 's accounts . As a result of this inspection , on DATE ORG ( ՀՀ պետական եկամուտների նախարարություն ) made an assessment , according to which the applicant company 's tax arrears amounted to QUANTITY ( ORG ) ( TIME . QUANTITY ( ORG ) ) , including surcharges and fines prescribed by the relevant tax laws .

On an unspecified date , ORG ( Երևան քաղաքի դատախազություն ) and ORG of LOC of GPE ( PERSON տարածքային հարկային տեսչություն ) instituted proceedings against the applicant company , claiming that it had failed to meet its tax obligations in an appropriate and timely manner and seeking to recover the above tax arrears .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) decided against the applicant company .

On an unspecified date , the applicant company lodged an appeal with the then ORG ( ՀՀ տնտեսական գործերով վերաքննիչ դատարան ) . The applicant company also requested that payment of the court fee ( known as ORG fee ) be deferred . In his request , the manager of the applicant company submitted , inter alia , that the company was experiencing financial problems and that he was the company 's sole employee .

On DATE ORG granted the applicant company 's request for deferral and admitted the appeal .

Following the reform of the court system introduced in GPE on DATE which brought about the establishment of ORG ( ՀՀ տնտեսական դատարան ) , the applicant company 's case was transferred to be examined by that court .

On DATE ORG decided to leave the authorities ' claim unexamined on the ground that the plaintiffs had failed to appear . In its decision , ORG levied a court fee on ORG in the amount of AMD CARDINAL,CARDINAL.CARDINAL ( approx . FAC ) .

It appears that the proceedings were resumed on an unspecified date .

On DATE ORG decided , at the prosecutor 's request , to take measures aimed at securing the claim , freezing the applicant company 's property and monetary assets in the amount of ORG CARDINAL .

On an unspecified date , the applicant company lodged a counterclaim with ORG , seeking to have the DATE assessment ruled unlawful . The applicant company requested that the payment of the court fee be deferred on the same grounds as before .

On DATE ORG granted the applicant company 's request for deferral of payment of the court fee and allowed the applicant company 's counterclaim , referring to LAW ( d ) and DATE ( c ) of the Law on State Fees ( « Պետական տուրքի մասին ORG օրենք ) .

On DATE ORG decided to join both claims and to examine them together .

On DATE ORG granted the authorities ' claim and dismissed that of the applicant company . The court decided to levy on the applicant company a total of ORG CARDINAL of tax arrears , including profit tax arrears of ORG CARDINAL plus a surcharge of ORG CARDINAL,CARDINAL.CARDINAL ( approx . ORG CARDINAL and ORG CARDINAL respectively ) , ORG ) arrears of ORG plus a surcharge of AMD CARDINAL,CARDINAL.CARDINAL and a fine of ORG CARDINAL ( approx . EUR CARDINAL , ORG CARDINAL and ORG CARDINAL respectively ) , and simplified tax arrears of ORG plus a surcharge of ORG CARDINAL,CARDINAL.CARDINAL and a fine of ORG CARDINAL ( approx . EUR CARDINAL,CARDINAL , ORG CARDINAL and ORG CARDINAL,CARDINAL respectively ) . In imposing the surcharges and fines , ORG referred to LAW Added Tax ( « Ավելացված արժեքի հարկի մասին ORG օրենք ) , Articles CARDINAL and CARDINAL of the PERSON on Taxes ( « Հարկերի մասին ORG օրենք ) and the provisions relating to the delayed payment of taxes . The amount of the unpaid court fee to be paid by the applicant company was calculated at ORG CARDINAL,CARDINAL ( approx . EUR CARDINAL ) .

On DATE the applicant company lodged a cassation appeal . Together with the appeal , the applicant company submitted a request for deferral of payment of the court fee , claiming that the company was experiencing financial problems : the company had only ORG TIME approx . EUR CARDINAL.CARDINAL ) on its books and in its bank account , both of which had been frozen .

By a letter of CARDINAL DATE ORG informed the applicant company that its cassation appeal would be examined on DATE . The letter also stated that the appeal would be returned unexamined should the applicant fail to pay the court fee by DATE .

By a letter of CARDINAL DATE ORG ( ՀՀ վճռաբեկ դատարան ) returned the applicant company 's cassation appeal on the ground that it had not paid the required court fee . The judgment of ORG came into force .

On DATE the applicant company applied to the Chairman of ORG ( ՀՀ վճռաբեկ դատարանի նախագահ ) , requesting that its appeal be examined out of time and claiming that it was incapable of paying the court fee since the company had almost no assets and the existing ones were frozen .

By a letter of CARDINAL DATE ORG to ORG of ORG ( ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատի ավագ խորհրդատու ) informed the applicant company that its cassation appeal had been returned since “ according to LAW [ ( ORG ) ( ՀՀ քաղաքացիական դատավարության օրենսգիրք ) ] commercial entities could not be exempted from payment of the ORG fee ” .

On DATE enforcement proceedings were instituted and an injunction was placed on the applicant company 's assets in the amount equal to the judgment debt .

On DATE ORG instituted bankruptcy proceedings in respect of the applicant company on the basis of an application lodged by ORG .

On DATE ORG decided to stay those proceedings until a decision had been taken on the applicant company 's application lodged with ORG . It appears that the bankruptcy proceedings are currently still stayed .

The relevant provisions of the ORG read as follows :

“ CARDINAL . A ORG fee shall be paid for : ( CARDINAL ) lodging a claim ; ... ( CARDINAL ) lodging appeals and cassation appeals against court judgments and decisions ...

The determination of the amount of a ORG fee , the exemption from its payment , the deferral or postponement of payment of a ORG fee , and the reduction of its amount are regulated by the “ PERSON on State Fees ” of GPE .

Private businessmen and commercial entities can not be exempted from payment of a ORG fee . ”

“ CARDINAL . The court , upon the request of a party or of its own motion , shall take measures to secure a claim , if the failure to take such measures may make impossible or hinder the enforcement of a judicial act or lead to the deterioration of the disputed property 's condition . It is allowed to secure a claim at any stage of the proceedings . ”

“ CARDINAL . Measures securing a claim are : ( CARDINAL ) placing an injunction on [ ( freezing ) ] the defendant 's property or monetary assets in the amount of the claim value ... ”

“ CARDINAL . An appeal shall be returned if : ... ( CARDINAL ) documents substantiating the payment of a ORG fee according to an established procedure and in a prescribed amount are not attached to the appeal , and , in cases where a deferral or postponement of payment of a ORG fee or a reduction of its amount are possible under the law , no relevant request has been made or such request has been refused . ”

“ A cassation appeal can be lodged on : ( CARDINAL ) points of law or a procedural violation of the parties ' rights ; [ and ] ( CARDINAL ) the ground of newly discovered circumstances .

“ CARDINAL . A document substantiating the payment of a ORG fee shall be attached to the [ cassation ] appeal . ”

“ CARDINAL . Judgments and decisions can be reviewed on the basis of new circumstances [ if ] ... a violation of a right ( rights ) guaranteed by an international convention to which GPE is a party has been found by a final judgment or decision of an international court ... ”

The relevant provisions of the Law on State Fees read as follows :

“ Rates of ORG fees shall be established in respect of the value of the property subject to assessment or the base fee established by this law . The amount of the base fee shall be ORG CARDINAL . ”

“ CARDINAL . for cassation appeals lodged against court judgments and decisions : ( a ) if a pecuniary claim – at the rate of MONEY of the claim value , but not CARDINAL times and not CARDINAL times the base fee ; ( b ) if a non - pecuniary claim DATE times the base fee ... ”

“ The following concessions can be fixed in respect of ORG fees : ( a ) exemption from payment of a ORG fee ; ( b ) reduction of the amount of a ORG fee : ( c ) reduction of the rate of a ORG fee ; ( d ) deferral of payment of a ORG fee ; and ( e ) exemption , reduction or deferral of payment of a surcharge imposed for the failure to pay a ORG fee to the budget in due time . ”

“ ... Private businessmen and commercial entities can not be exempted from payment of ORG fees prescribed by LAW ... ”

“ Concessions in respect of payment of a ORG fee by specific payers or groups of payers can be set by : ... ( c ) the courts or judges in specific cases referred to in DATE law taking into account the financial situation of the parties ... ”

The relevant provisions of the PERSON on Taxes read as follows :

“ Tax liability shall include payment of taxes ( including taxes for a concealed or understated taxable object ) , and surcharges and fines prescribed by the tax legislation for violation of the tax legislation and other legal acts regulating tax relations in GPE . ”

“ Taxpayers ( enterprises , institutions and organisations ) and their officials as determined by the legislation of GPE shall be responsible for accurate calculation and timely payment of taxes , and for compliance with other requirements of the tax legislation ... ”

“ In case of delayed payment of tax , taxpayers ... shall pay a surcharge equal to MONEY of the overdue amount for DATE of delay . ”

“ In case of failure to keep accounts ( and also other calculations and ( or ) records envisaged by the tax legislation and the decrees of the Government of GPE ) or in case of keeping accounts in violation of the established procedure or inaccurately preparing accounting reports , calculations , tax returns and other documents and information required under the tax legislation , a fine shall be levied on the taxpayer equal to MONEY of the amount of the tax not paid or paid incompletely to the budget as a result of these violations . ”

“ In case of non - registration of objects of business activity , such as supplied , furnished , transported or sold goods and products , and non - registration of work carried out and services rendered in conformity with the procedure prescribed by the Government of GPE , a fine shall be levied on the taxpayer equal to MONEY of the overall value expressed in ( calculated at ) the sales prices of the unregistered objects of business activity , including the sold ( realised ) ones ...

If repeated non - registration of objects of business activity is recorded within DATE of the date when the violation was recorded by the tax inspectorate , a fine shall be imposed equal to MONEY of the overall value expressed in ( calculated at ) the sales prices of the unregistered objects of business activity , including the sold ( realised ) ones . ”

The relevant provisions of the Law on Value Added Tax read as follows :

“ The amount of the concealed or understated ORG and a fine equal to MONEY of that amount shall be levied from taxpayers who conceal or understate the turnover subject to ORG and who conceal or understate the amount of GPE payable to the budget by understating ... the amount of ORG paid for goods and services in violation of the procedure prescribed by this law . ”