Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

Georgieva;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant , born in DATE , is a journalist by profession . DATE and DATE she was employed at ORG , a leading DATE newspaper in her hometown of GPE . According to a certificate issued by her employer , in DATE her gross DATE salary there was CARDINAL NORP levs ( ORG ) , and in DATE it rose to ORG CARDINAL .

In the NORP education system , after the seventh or eighth grade , when pupils complete their primary education , they can continue either in an ordinary or in a specialised secondary school . The ordinary secondary ORG curriculum does not usually involve the intensive teaching of a special subject such as mathematics , foreign languages or engineering . Enrolment in these schools is on the basis of documents only and does not typically present a problem . The curriculum of the specialised secondary schools does include the teaching of such subjects , and pupils are admitted to them exclusively on the basis of competitive examinations , which take place in DATE ( DATE in GPE starts on DATE ) . Under regulations issued by ORG and ORG , pupils with certain medical conditions can be admitted to specialised secondary schools without an examination , as an exceptional measure .

On DATE the head of the GPE education inspectorate , a territorial division of ORG and ORG , appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs . The commission ’s members were CARDINAL employees of the inspectorate , PERSON , PERSON , Mr PERSON and Mr G.D. , and a paediatrician , PERSON

On DATE CARDINAL parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to ORG and ORG . They said that CARDINAL and fiftyseven children had been admitted to specialised secondary schools in GPE on the basis of a medical condition and not following a competitive examination . Most of those were apparently the children of medical doctors , paramedical staff and teachers . The parents complained that whereas they were paying MONEY for private preparatory lessons , certain pupils had been bragging that they would be admitted to ORG in GPE in exchange for paying ORG CARDINAL ; indeed , DATE this had become a fact . They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses . They said that they were not blaming the admissions commission , which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems . They insisted that the ORG should set up a special commission to investigate . A number of parents subsequently staged DATE public protests in front of the building of the GPE education inspectorate .

Following this complaint , on DATE the Minister of ORG and ORG appointed CARDINAL officials from ORG to inspect the work of the admissions commission . Having done so CARDINAL , the CARDINAL officials produced a fivepage report on DATE . The report , which was not made public , found that the commission had committed a number of violations of the school admissions regulations , such as admitting pupils who did not have the requisite medical conditions , making findings on the basis of invalid medical documents and poorly documenting its activities . It also said that there were indications that Dr ORG had been forging documents . The report ’s proposals included “ imposing disciplinary punishments on the commission ’s members , commensurate with the violations found and in line with the Labour Code ” . On DATE the Minister imposed on PERSON , PERSON , Mr PERSON and PERSON the disciplinary punishment of a “ warning of dismissal ” , citing a number of violations and omissions in the school admissions procedures .

NORP Some time after that the GPE regional prosecutor ’s office opened an inquiry concerning PERSON , PERSON , Mr PERSON and Mr G.D. On DATE it instituted a formal investigation against “ the implicated officials of the education inspectorate ” on suspicion of bribetaking . In the course of this investigation the authorities interviewed the CARDINAL officials , some parents who had complained to ORG and ORG and parents alleged to have given bribes to have their children admitted to specialised schools . On DATE the prosecutor ’s office decided to discontinue the investigation without bringing charges . It said that while the officials had indeed breached their duty and had been given a disciplinary punishment as a result , there was no evidence that they had done so as a result of bribetaking .

The applicant learned about the story and decided to cover it in an article , which appeared on pages CARDINAL and CARDINAL of the CARDINAL DATE issue of ORG . It bore the headline “ Corruption in GPE education ! ” , the subheadline “ CARDINAL experts and a doctor sacked over bribes ? ” and the applicant ’s byline , and read , in so far as relevant , as follows :

“ CARDINAL experts of the GPE inspectorate of [ ORG and ORG ] will be sacked for corruption if [ the Minister ] heeds the findings made by his representatives after an inquiry conducted following a bribetaking alert , a source from the inspectorate revealed DATE . DATE the investigators reported on their findings after a onemonth investigation in GPE , which included interviews with parents who had given money to have their children admitted to elite schools on the basis of false diagnoses . According to the uncorroborated information the matter concerns CARDINAL boys and girls who got onto the lists despite having no right to benefit from the privilege under the Regulation on pupils with congenital and acquired diseases . For each child via the ‘ ORG route the experts pocketed CARDINAL GPE dollars . The sum total of the bribe is MONEY , said the source . It is not clear how the stringpullers will be dealt with and whether they will now have to surrender their places to their genuinely sick peers , teachers commented .

The experts incriminated in the corruption are [ Mr PERSON ] , [ Ms A.M. ] , [ Mr G.D. ] and [ PERSON ] of the vocational education department . The commission , which consisted of CARDINAL members including the doctor from ORG Secondary School Dr [ ORG ] , deliberated in DATE .

The doctor ’s task was to present the findings of [ a special medical commission in charge of assessing degrees of disability ] at the deliberations and advise on which diagnoses corresponded to the rules . According to the CARDINAL educationalists , the doctor should bear the whole responsibility because she misled them . For instance , she deliberately wrote ... ‘ bronchial ORG instead of ‘ chronic ORG ; by this means the children in respect of whom money was paid took the places of those truly deserving of the privilege . There were CARDINAL candidates in respect of whom PERSON [ PERSON ] declared that she was their general practitioner . They did not pass through the [ abovementioned special medical commission ] at all , the other members assert . They accept blame only for having been too trusting and not having personally checked what was written in the minutes . After the alert the doctor was subjected to checks by ORG . If the allegations against her are confirmed she will lose the right to practise . According to unofficial information , PERSON [ ORG ] forged health records by using stamps from the First , Second and Third polyclinics . DATE the school doctor was not available for comment .

It transpired that she never gave anybody her home address . For her part , during the investigation [ Dr N.P. ] said that she was innocent because the educationalists had deliberately withheld from her this DATE ’s shortened list of illnesses . She had thus been acting under the old instructions . As this issue goes to press it is not clear what [ the Minister ] has decided for his GPE staff . Here , employees of the head of the inspectorate , [ PERSON ] , insisted that she should be punished as well for failing to exercise due supervision . CARDINAL experts sent the Ministry a protest letter insisting that [ PERSON ] be removed for incompetence . ... ”

The same day PERSON , PERSON , Mr PERSON and Mr PERSON wrote to ORG denying the allegations against them , requesting that the applicant be punished and advising the newspaper that they intended to take legal action .

DATE , on DATE , ORG ran a second article by the applicant . Its headline was “ Education kickbacks affair confirmed ” and its subheadline read “ Blue MP saves corruption suspects from sacking ” . In that article the applicant reported on the comments of the head of the GPE education inspectorate about the affair , the statements of PERSON N.P. , who denied any wrongdoing , and the reaction of PERSON , Ms A.M. , Mr PERSON and Mr PERSON to her first article .

In a box appearing after the article the newspaper published the response of PERSON , PERSON , Mr PERSON and Mr G.D. It read as follows :

“ Rebuttal of the article ‘ Corruption in GPE education!’ published in issue CARDINAL of ORG on DATE

Dear Editors ,

We are seriously disturbed and appalled by the aforementioned article by a journalist on your paper , PERSON . The lady should be aware of the fact that such grave accusations should be published only when incontrovertible proof exists .

We categorically maintain that the article is a libel which aims to injure the reputation of [ the education inspectorate ] of the [ ORG and ORG ] and to deeply hurt our personal and professional dignity .

We insist that PERSON be held accountable for the truthfulness of her allegations . We insist that PERSON publish the documents allegedly incriminating us in ‘ taking CARDINAL ORG , or that the editors publish an apology on the same page of the newspaper !

We advise you that we will protect our rights as civil servants and citizens by all lawful means . ”

In an addendum appearing just below the box the applicant wrote :

“ Dear ladies and gentlemen educationalists , Please accept my apologies if I have offended you by imputing to you acts that you did not perpetrate . I sincerely wish you success in the difficult struggle to protect your rights as civil servants and citizens by all lawful means . I trust that this struggle will include efforts allowing truth and justice to prevail .

Yours , PERSON ”

On DATE ORG published a third article written by the applicant , under the headline “ GPE no . CARDINAL education chief removed ” and with the subheadline “ ORG triggered inquiry with articles about bribes ” . The article mainly reported on the dismissal of the head of the GPE education inspectorate following the internal inquiry conducted by ORG and ORG . It also commented further on the improper school admissions affair .

On DATE PERSON , PERSON , Mr PERSON and Mr PERSON lodged a criminal complaint against the applicant and the editorinchief of ORG with ORG ( GPE районен съд ) . They alleged that in her CARDINAL articles the applicant had disseminated , and the editor had allowed to be disseminated , injurious statements of fact about them and had imputed an offence to them . More specifically , they took issue with the phrases “ CARDINAL experts of the GPE inspectorate of [ ORG and ORG ] will be sacked for corruption if [ the Minister ] heeds the findings made by his representatives after an inquiry conducted following a bribetaking alert ” ; “ [ the admission of ] their children ... to elite schools on the basis of false diagnoses ” ; “ For each child admitted via the ‘ ORG route the experts pocketed CARDINAL [ GPE ] dollars . The sum total of the bribe is MONEY ” and “ The experts incriminated in the corruption are [ Mr GPE ] , [ Ms A.M. ] , [ Mr G.D. ] and [ Ms ORG ] of the vocational education department ” , as well as with some phrases contained in the articles published on DATE and DATE . In their view , by publishing these phrases the applicant and the editor had committed libel , contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . They sought compensation in the amount of ORG CARDINAL .

In a subsequent filing the complainants specified that they sought ORG CARDINAL each for nonpecuniary damage . On DATE they withdrew their claims and the charges against the editor of ORG , but maintained the charges and claims against the applicant .

The trial took place on DATE , DATE , CARDINAL May , DATE and DATE and CARDINAL DATE , DATE and DATE . The court heard evidence from the applicant , the complainants and a number of witnesses called by both parties . On DATE the applicant stated that she had the names of many parents who had paid money to obtain the admission of their children to specialised schools , but that none of them would come forward to testify about that for fear of jeopardising their children ’s future . On DATE a witness for the applicant who was a member of a local anticorruption nongovernmental organisation said that many parents had gone to him , and that he knew from friends and people working in the education inspectorate that amounts of the order of CARDINAL United States dollars ( ORG ) were being taken for a child to be improperly admitted to a specialised school . Since he had known the applicant for DATE , he had passed that information on to her . He told her that CARDINAL or QUANTITY parents had confided that they had paid ORG CARDINAL each to a member of the commission , without identifying the member in question . However , he could not name those parents for obvious reasons .

On DATE the applicant requested the withdrawal of the judge examining the case , citing her hostile and biased demeanour at trial , in particular towards witnesses called by the applicant , her refusal to allow the applicant to adduce evidence and use notes when testifying , and mistakes in the trial record . On DATE the judge refused the request , saying that decisions whether or not to allow evidence depended on its admissibility and relevance , that the applicant could have sought the rectification of any mistakes in the trial record , that to allow the applicant to use notes when testifying would run counter to the rules of criminal procedure , and that the manner in which the evidence was assessed was reviewable on appeal and was not a ground for withdrawal .

In a judgment of CARDINAL DATE the ORG found the applicant guilty of having , in the printed press , disseminated injurious statements of fact about , and imputed offences to PERSON , PERSON , Mr PERSON and PERSON , officials carrying out their duties , contrary to Article CARDINAL § § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL taken in conjunction with LAW . It applied LAW ( see paragraph CARDINAL below ) and replaced the applicant ’s criminal liability with CARDINAL administrative fines of ORG CARDINAL each . It also ordered the applicant to pay each of the complainants ORG CARDINAL,CARDINAL for nonpecuniary damage , dismissing the remainder of their claims , and awarded them LAW in costs ( ORG CARDINAL for court fees and ORG CARDINAL for ORG fees ) . Lastly , it ordered the applicant to pay ORG CARDINAL in court fees . The court described its findings of fact and held as follows :

“ In the course of the trial [ the applicant ] gave explanations . It should however be noted that in addition to being evidence the statements of the accused are also a means of defence . [ The applicant ] says that she conducted a journalistic inquiry which is governed by the unwritten rules of conscience and a moral duty to warn society . She had conversations with parents who claimed that some [ pupils ] had arranged for [ their admission ] by paying the commission . [ For example , a pupil ] had boasted that her father had paid [ ORG ] CARDINAL for her admission . At that point the Minister of ORG had already ordered an inquiry into [ such ] allegations . [ The applicant ] does not indicate the names of the parents who gave her information about the payment of specific sums of money to the complainants for the improper admission of their children . Her assertions do not match the remaining evidence , namely [ the testimony of a witness for the complainants and ] the GPE complaint to the Minister . The complaint says that ‘ other pupils brag in their classes that for MONEY they will be admitted to the LANGUAGE Language Secondary School’ , but does not specify to whom [ this money ] will be given . As regards [ the above - mentioned pupil ] , it is mentioned that she was admitted with a diagnosis of ‘ chronic pyelonephritis’ and kidney insufficiency although she is an active sportswoman , but this does not automatically lead to the conclusion that [ her ] father paid money to the commission . [ A witness for the applicant ] does not mention the name of a single parent who gave money to have his or her child admitted without an examination , and does not know who may have received such money . The article says ‘ The sum total of the bribe is MONEY , said the source’ . At trial [ the applicant ] testified that she arrived at this amount by multiplying CARDINAL children by MONEY ( the sum paid by the father of [ the aforementioned pupil ] ) , which came to MONEY .

[ The applicant ] maintains that another source was [ the head of the GPE education inspectorate ] , who had said ‘ I will talk if the Minister allows it , I do not stand behind this number of CARDINAL , there may be more’ . [ This witness ] occupied the post of head of [ the GPE inspectorate ] from DATE ] and says that she did not meet [ the applicant ] before the publication of the article on DATE . However , even her [ subsequent ] statement does not contain allegations of corruption .

In her explanations [ the applicant ] relies on [ Dr N.P. ’s ] statements about ORG respective roles in the improper admissions process . [ She alleged ] that [ Mr PERSON , CARDINAL of the complainants ] had put the documents of the [ abovementioned pupil ] before the commission and had said ‘ She is to be admitted with no questions asked.’ There was also a child diagnosed with having CARDINAL leg QUANTITY shorter than the other who had excellent marks in sport . ORG forms with signatures and seals from various medical centres were available in case of need . When questioned at trial , [ Dr ORG ] said that the documents of the [ pupil diagnosed with chronic pyelonephritis ] were left because the parents and the child were unable to appear in person , which was in any case not required . As regards the blank forms , there was one remaining from DATE ... with an old seal and with no connection to the present commission . The foregoing can not lead to the conclusion that the complainants have committed an offence under LAW [ of LAW : bribetaking ] .

[ Under LAW of LAW , ] the perpetrator is not punished if he or she proves the truthfulness of the injurious statements of fact disseminated or of the imputation of an offence . The law creates a rebuttable presumption that all injurious statements of fact are false and that all imputed offences have not been committed . That is , the burden of proving the truth [ of these statements ] lies with the accused . An author ’s subjective certainty of the truthfulness of his or her assertions does not relieve him or her of liability ; this certainty must be corroborated by objective facts . Neither the truthfulness of the injurious statements nor that of the imputation of an offence was established during the course of the trial . LAW can not therefore be applied .

The offence proscribed by LAW ] [ seeks to protect ] ORG reputation and public esteem . The opportunities to freely express opinions and to seek , receive and impart information are among the fundamental rights enshrined in LAW ] . LAW [ of LAW ] prohibits the abuse of rights or their exercise in a manner detrimental to the rights and the lawful interests of others . Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL [ of the LAW ] provide that the exercise of the right to express an opinion and the right to information must not be used to the detriment of the rights and reputation of others . The existence of the offence of defamation is a guarantee that the competing rights protected by LAW will not be flouted . The same limitation exists in LAW , which provides that the exercise of these freedoms , since it carries with it duties and responsibilities , may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society for the protection of the reputation or rights of others .

The conduct element of the offence consisted in action . Both forms of the criminal act have been perpetrated : dissemination of untrue injurious statements of fact and imputation of an offence which has not been committed .

The dissemination ( bringing to the knowledge of third parties ) occurred through an article published in issue CARDINAL of ORG on DATE , under the headline ‘ Corruption in GPE education!’ and the subheading ‘ CARDINAL experts and a doctor sacked over bribes?’ , reporting that ‘ CARDINAL experts of the GPE inspectorate of [ ORG and ORG ] will be sacked for corruption if [ the Minister ] heeds the findings made by his representatives after an inquiry conducted following a bribetaking ORG , [ and mentioning ] ‘ the children in respect of whom money was ORG . It was established that the internal inquiry was not carried out pursuant to an alert about bribetaking by the commission , but in relation to breaches of [ the school admission regulations ] . The experts were simply taking note of the diagnoses already made by [ specialised medical commissions in charge of assessing degrees of disability ] . The [ assertion ] that they will be dismissed for corruption , and that the commission was checked up on following a bribetaking alert is injurious . In her statement at trial [ the applicant ] says that before writing the article she did not acquaint herself with the GPE complaint or with the report of ORG internal inquiry .

The defence objects that the statements of fact featuring in the article can not be characterised as injurious because the matter involves proven wrongdoings : the word ‘ corruption’ as used in the article is not equivalent to bribetaking , but rather implies the existence of serious violations in the admission of pupils . The court finds this argument unconvincing . [ The article specifically says ] not only that the [ complainants would be ] sacked , but [ also ] that the inspection [ was carried out ] following ‘ information about bribetaking’ .

The imputation of an offence consists in the [ applicant ’s ] allegations , made in an article published in issue CARDINAL of ORG on DATE under the headline ‘ Corruption in GPE education!’ , and the subheadline ‘ CARDINAL experts and a doctor sacked over bribes?’ , stating : ‘ For each child admitted via the ‘ ORG route the experts pocketed CARDINAL [ GPE ] dollars . The sum total of the bribe is MONEY , said the source’ [ and ] ‘ The experts incriminated in the corruption are [ Mr PERSON ] , [ Ms A.M. ] , [ Mr G.D. ] and [ PERSON ] of the vocational education ORG

The allegation concerned an offence under LAW [ of LAW ] . The abovementioned evidence did not show that an offence under LAW [ the LAW ] – bribetaking DATE had been committed . [ A witness for the applicant ] does not say which parent gave money to whom ; in their letter to ORG ... the parents specifically wrote ‘ We are not making any allegations against the commission of the [ ORG ’s ] regional inspectorate , as it merely notes down the conclusions of the [ special medical commission ] and assigns pupils with health problems to different schools depending on the type of ORG ; [ a further witness for the applicant ] confirmed the contents of this letter . As regards the source mentioned in the quotation , at trial [ the applicant ] said that she had arrived at the sum of CARDINAL [ GPE ] dollars by multiplying CARDINAL children by MONEY , i.e. she was not quoting any source . It can be seen from [ the Minister ’s reply to a question in ORG ] that ‘ ORG and ORG has received no reports naming officials alleged to have perpetrated acts of corruption , and we are therefore not in a position to refer the matter to the prosecuting authorities for investigation.’

Defamation is an offence requiring resultant harm . In the instant case this condition has been fulfilled , because third parties have learnt of the injurious statements and the imputed offence .

The form of mens rea was direct intent ... [ The applicant ] understood the antisocial character of her act , foresaw its dangerous consequences and wished them to occur . She was aware of the injurious character of what she wrote and knew that by imputing an offence to the complainants she would injure their reputation . She must have known that alongside her immediate purpose – informing society – she would bring about the antisocial result of impinging on another ’s legal sphere by making discrediting allegations .

[ The applicant ] has fulfilled the conduct and fault elements of the offence under LAW ( [ CARDINAL ] ) and ( CARDINAL ) and CARDINAL in conjunction with LAW [ of LAW ] by

... disseminating injurious statements of fact about , and imputing an offence to , [ PERSON ] , an official carrying out her duties , in the printed press .

... disseminating injurious statements of fact about , and imputing an offence to , [ Ms A.M. ] , an official carrying out her duties , in the printed press .

... disseminating injurious statements of fact about , and imputing an offence to , [ Mr GPE ] , an official carrying out his duties , in the printed press .

... disseminating injurious statements of fact about , and imputing an offence to , [ Mr G.D. ] , an official carrying out his duties , in the printed press .

DETERMINATION OF THE PUNISHMENT

The [ applicant ’s ] offence is punishable by a fine ranging from MONEY and public reprimand . [ The applicant ] is an adult , has not been convicted of a publicly prosecutable offence , [ and ] there is no indication that she has ever [ had a finding of criminal liability against her replaced under LAW ] . In view of this , the court accepts that all the formal prerequisites are in place for it to apply the imperative rule of Article ORG and waive [ the applicant ’s ] criminal liability , as the aims of the punishment [ as defined in LAW ] may be achieved through the [ simple ] imposition of an administrative penalty .

In determining the quantum of the punishment DATE the fine – the court had regard to the gravity of the [ applicant ’s ] act , her personality and her motivation [ for committing the offence ] .

In view of the foregoing , the court considers that the aims of the punishment can be fully attained by imposing an administrative penalty in the form of a fine of LAW in respect of each of the offences .

In assessing the dangerousness of the offence and of the offender the court had regard to [ the applicant ’s ] criminal record – she has not been convicted DATE , the relatively serious nature of her offence , her motives and the character of her act , its consequences , [ and her ] degree of culpability . It therefore imposes an average penalty , [ in view of ] the balance of mitigating and aggravating factors .

Concerning the civil claim :

Each of the complainants claims ORG MONEY in damages . Under section CARDINAL of the [ DATE LAW ] , a tort [ consists in the ] culpable commission of a wrongful act which causes damage . Seeing that the civil claim in the criminal proceedings has an accessory character and that [ the applicant ] has been found guilty of the offence proscribed by LAW ( [ CARDINAL ] ) and ( CARDINAL ) and CARDINAL in conjunction with LAW of [ LAW ] , all these elements are in place .

The existence of damage stemming from the offence [ of defamation ] is an irrebuttable presumption and does not need to be proved . Evidence is only necessary in respect of the extent of the damage .

[ A witness for the complainants ] testified that the publication had had negative effects on their mental state . They had found it hard to perform their jobs [ and ] their state of health had worsened . She knew the complainants as honest and decent people , good professionals who had a responsible attitude towards their work . [ A second witness for the complainants ] said that [ they ] had reacted forcefully because they wanted retribution . [ A third witness for the complainants ] knew [ them ] as honest people who had been depressed after [ the publication of ] the article , because their reputation had been brought down , they had felt ill and Mr PERSON had even taken sick leave . [ According to a fourth witness for the complainants ] , ‘ each CARDINAL of them [ had ] suffered deeply as a result of [ ORG . This testimony shows that the complainants have sustained pain and suffering .

Section CARDINAL of the [ DATE LAW ] says that the amount of compensation for nonpecuniary damage is to be determined by the court in equity . In view of the proven pain and suffering , the court finds that the equitable amount of compensation for nonpecuniary damage is BGN MONEY for each of the complainants . It dismisses the remainder of the claims as unproven . ”

On DATE the applicant appealed to ORG ( GPE окръжен съд ) , challenging the entirety of the lower court ’s judgment . She asked the court to rehear her and all the witnesses .

On DATE the complainants also appealed , contesting the quantum of the punishment and the amount of damages awarded .

On DATE the court turned down the applicant ’s request to rehear her and the witnesses , saying that all of them had already given evidence at trial , and that the applicant did not specifically argue that any procedural violations had taken place or that any facts remained unclear .

The court heard the appeal on DATE . The complainants partly withdrew their claims , stating that although in their initial complaint they had also referred to the applicant ’s second and third articles ( see paragraphs CARDINAL and CARDINAL above ) , they no longer maintained their grievances in respect of them . They also specified that they sought ORG CARDINAL,CARDINAL each . The court accordingly discontinued the proceedings in respect of the dropped charges and allowed the amendment of the civil claim ; it also heard the parties’ closing arguments . Counsel for the applicant produced a brief prepared by LAW , an international nongovernmental organisation defending freedom of speech . The court refused to admit it to the file . It admitted in evidence a certificate issued by the GPE prosecuting authorities stating that criminal proceedings had been instituted against officials of the regional inspectorate of ORG and ORG following allegations of bribetaking ( see paragraph CARDINAL above ) .

In a brief filed on DATE and largely coinciding with his oral arguments at the hearing , counsel for the applicant cited a number of this ORG ’s judgments and argued that ORG had erred by concentrating solely on the acts alleged against the complainants and , accordingly , on the availability of sufficient proof of bribetaking . If it had read and analysed properly the full text of the article – which contained many phrases removing certainty from the allegations and distancing the applicant from them – it would have found that she had not asserted that bribetaking had taken place . Moreover , the court had ruled ultra petita , as , in finding the article defamatory , it had relied on a phrase not pleaded by the complainants – “ the children in respect of whom money was paid ” . It had also erred by holding that the applicant had perpetrated both forms of defamation DATE disseminating injurious statements of fact and imputing an offence – , and by holding that speculating about a future event – the dismissal – could amount to an allegation of fact . Furthermore , the facts asserted by the applicant – the existence of signs of bribetaking – were true . An internal inquiry had indeed taken place . It had found that numerous serious violations had occurred which could hardly be explained by professional negligence alone . There were indications that parents had given money to obtain admission for their children . While all of these indeed constituted only prima facie evidence of bribe - taking , this was all the applicant had claimed . She had acted in good faith , checking her sources . Although she had been aware that she might upset certain people , she had decided to go to print in the best interests of the children who had not been admitted . She had done so in an urgent situation , going to press DATE before the start of DATE . She had made public a story which was the subject of lively discussion in the town , and had achieved a positive effect , preventing future instances of corruption . The court had to take into account all these factors and assess the necessity of the interference with the applicant ’s freedom of expression in concreto .

In a final judgment of CARDINAL DATE ORG upheld the applicant ’s conviction and sentence . It found that the lower court had erroneously failed to rule on the charges relating to the CARDINAL articles of DATE and DATE , but that the ORG withdrawal of these charges had made the error good and had obviated the need to correct it . It also found that , because of the partial withdrawal of the charges and the related reduction and detailing of the ORG damages claims , there was no need for it to rectify the lower court ’s failure to determine which part of the damages was awarded in respect of which article . The court continued :

“ Having fully reviewed [ the lower court ’s ] judgment ... [ this court ] finds that the appeals are ILLFOUNDED .

The overall assessment of the oral and written evidence gathered by the [ lower court ] confirms the facts as set out in detail in [ its ] judgment ...

In reviewing [ the applicant ’s ] act , which consisted in the writing of the [ impugned article ] , [ the lower court ] correctly held that [ her offence ] was committed by action . [ She ] fulfilled the conduct elements of both forms of the offence of defamation , as in her article she disseminated the injurious untrue statement of fact ... that the persons named in the article – the CARDINAL complainants – ‘ WILL BE SACKED FOR CORRUPTION’ and at the same time imputed to them an offence which they had not committed , telling her readers that ‘ FOR EACH CHILD ADMITTED ORG THE ‘ ALTERNATIVE’ ROUTE THE EXPERTS POCKETED AT CARDINAL [ ORG STATES ] CARDINAL . THE SUM TOTAL OF THE BRIBE IS ABOUT CARDINAL ... THE EXPERTS INCRIMINATED IN THE CORRUPTION ARE [ MR GPE ] , [ MS A.M. ] , [ PERSON ] AND [ ORG T.K.]’ . It is true that ... in its reasons ... [ the lower court ] , citing the article , also mentioned the phrase ‘ the children in respect of whom money was paid’ . This does not however mean that [ the lower court ] ventured outside the [ charges brought by the complainants ] , relying on a phrase which [ the latter did not find fault with ] , as incorrectly argued by the defence . If [ the lower court ] had relied on this phrase it would have found the applicant criminally liable for it . [ However , it can be seen from its reasoning ] that it held that the injurious statement of fact was ‘ the [ assertion ] that they would be dismissed for corruption , and that the commission was checked on following a bribetaking alert . [ The lower court did not find ] the phrase ‘ the children in respect of whom money was paid’ to amount to an injurious assertion of fact or an imputation of an offence , and the objection in this regard is unfounded .

The argument of the defence that the phrase ‘ will be sacked for corruption’ concerns an uncertain future event and not a fact , and that , accordingly , it can not amount to defamation is groundless . Analysis of the impugned phrases shows that the ORG supposed impending dismissal for being corrupt ( which is asserted as a fact ) is an injurious statement because it affects their personalities and is liable to tarnish their reputations . The legal conclusions would be completely different if [ the applicant ] had merely stated ‘ they will be ORG without mentioning the specific reason for that , namely corruption . This word undoubtedly refers to the ORG conduct and attributes negative qualities to them , characterising them negatively in their capacity as individuals and public officials . [ The applicant ] , in her capacity as the author of the article , told the readers of the newspaper that the impending dismissal of the complainants was on account of corruption , which was presented as a fact in the article , that is , as something that had already happened , something real . It is exactly this which makes the news of their future dismissal injurious . Moreover , from a legal viewpoint , future events as well as negative facts in which an event is lacking are nonetheless facts . The use of the future tense does not therefore exculpate [ the applicant ] , but should rather be taken as a mitigating circumstance , justifying a lesser penalty ... Undoubtedly the negative consequences flowing from the defamatory assertion of a future dismissal ( as stated in the article ) are less than those flowing from a dismissal already carried out for corruption . However , in both cases the author undermines the good name of the person and their positive reputation . For similar reasons , the criminal nature of the act depends little on whether [ the applicant ] used the expression ‘ accused of GPE or ‘ NORP . The opinion of the defence that an allegation is defamatory , that is , capable of damaging the ORG reputations only in the latter case is not shared by [ this court ] .

With the second impugned phrase [ the applicant ] imputed to the complainants an identifiable serious intentional offence , namely bribe - taking ( LAW seq . [ of LAW ] ) . [ The lower court ] , in line with the established caselaw and the prevailing morality , correctly found that this also characterises negatively the personalities of the complainants . As a rule , an offence , as an antisocial , guilty and punishable act , ... is in all cases reprehensible from a moral viewpoint and without exception reflects negatively on the personality of its perpetrator . For this reason , [ the applicant ’s ] assertion that as a result of a bribe the complainants received MONEY categorically affects their good names and dignity as citizens and professionals . It was thus properly characterised as defamatory by [ the lower court ] . The argument of the defence that the impugned article did not contain allegations that the complainants had accepted bribes was correctly rejected as unfounded by [ the lower court ] . In the article [ the applicant ] unequivocally explained to readers the reason for and the amount of the bribe , specifying that ‘ for each child admitted via the ‘ ORG route the experts pocketed MONEY . The sum total of the bribe is CARDINAL ORG .

As to the [ applicant ’s ] defence that the information in the article was true , the court finds this defence untenable . No evidence proving in an incontrovertible manner the truth of the injurious assertion that the complainants would be dismissed for corruption has been gathered , either by the [ lower court ] or before the adoption of [ this court ’s ] judgment . The [ CARDINAL orders ] of DATE show that the complainants were indeed disciplined after the publication of the article . However , they were not dismissed but merely given a warning of dismissal , which is obviously not the same thing . There is no indication whatsoever that their dismissal was proposed or discussed . They were penalised for the numerous violations committed by them in the course of their work as members of the commission for assigning pupils with chronic illnesses and/or special educational needs to specialised secondary schools , not for engaging in corrupt practices . It has not been established that the complainants committed the offence of bribetaking . For this reason , the [ lower court ] correctly refused to apply LAW [ of LAW ] . This provision states that [ persons making allegedly defamatory allegations ] are not to be punished if they prove the truth of the injurious statements or the imputation of an offence . In view of the presumption of innocence [ enshrined in LAW and LAW ] , and in the absence of a final conviction establishing that the complainants committed the offence of bribetaking , the [ lower court ’s ] conclusion that the prerequisites of LAW ... have not been met is correct and lawful . Only a final conviction is capable of establishing the truth of [ the applicant ’s ] assertion that the complainants committed the offence of bribetaking .

In view of its duty ... to gather not only incriminating , but also exculpating and mitigating evidence , [ the lower court ] reviewed the availability of information to the effect that the complainants had committed the imputed offence , that is , taken bribes . This approach by [ the lower court ] was in [ the applicant ’s ] interest , in view of the rule embodied in LAW [ of the LAW ] . The defence is therefore mistaken in its belief that [ the lower court ] erred by examining the ORG acts . [ That court ] also discussed in detail [ the applicant ’s ] act and , as can be seen from the operative provisions of its judgment , correctly found that her acts , and not those of the complainants as incorrectly argued by the defence , were the subjectmatter of the case .

[ A certificate issued ] by the GPE regional prosecutor ’s office ... shows that [ this office ] opened [ an inquiry ] into the unlawful admission of pupils ... by a commission of the [ GPE regional inspectorate of ORG and ORG ] during the DATE . After completing the inquiry [ the prosecuting authorities ] instituted [ a criminal investigation ] against officials of [ the inspectorate ] suspected of having taken bribes ... However , the certificate does not say whether these officials were the complainants . [ In any event , ] this does not alter [ the lower court ’s ] conclusion that [ the applicant ’s ] act was contrary to Article CARDINAL § § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL in conjunction with LAW [ of LAW ] , a conclusion which is fully shared by [ this court ] . Even if it were to be assumed that these criminal proceedings for bribery were directed against the complainants in their capacity as members and ... chairman of the commission ... , this fact alone is not enough to rebut the presumption of innocence and establish the truth of the injurious statements and the imputation of an offence , because the conclusion of these criminal proceedings by a final conviction of the CARDINAL complainants of the offence of bribery is an uncertain future event . It is not disputed between the parties that at the time of the adoption of [ this court ’s ] judgment the criminal proceedings against the complainants are pending at the pre - trial stage . The ongoing nature of the investigation does not constitute grounds for adjourning the instant case until its completion , in view of the legal timelimits for concluding the criminal proceedings , which , if excessive in length , may engender a real risk that the absolute limitation period for prosecuting [ the applicant ] will expire . An adjournment of the case is therefore unacceptable , because it would deprive the complainants of the right to obtain a judicial determination of the charges levelled by them owing to the expiry of the limitation period for prosecuting the offence [ allegedly ] committed by [ the applicant ] . Nor do the criminal proceedings pending against the complainants constitute grounds for staying the proceedings in the instant case , although the outcome of the investigation concerning them is of great importance for [ the applicant ’s ] liability and the application of LAW [ of LAW ] . The court may stay a criminal case only in a limited number of situations [ envisaged by LAW ] . The existence of a criminal investigation against the complainants , the outcome of which is determinative for the resolution of the present case , is not such a situation . There are , then , no grounds for staying the proceedings in the instant case pending completion of the criminal proceedings against the complainants . It follows that , in so far as it has not been properly established that the complainants committed the imputed corrupt acts , [ this court ] endorses [ the lower court ’s ] conclusion that [ the applicant ’s ] act amounted to defamation contrary to LAW ) and ( CARDINAL ) and CARDINAL in conjunction with LAW of LAW ] .

It is conceivable that the criminal proceedings against the complainants may end in a final conviction ... [ Their conviction ] would undoubtedly establish the truth of the injurious statements disseminated and of the imputation of an offence , as required under LAW [ of LAW ] . If that were to happen , [ the applicant ] could request the proceedings to be reopened and [ the judgments against her ] to be set aside , relying on the existence of a new fact which was not known to [ the courts trying her case ] . For these reasons , the information in the certificate issued by the prosecuting authorities is only an indication that there were grounds for investigating officials of the [ regional inspectorate of ORG and ORG ] for corruption , but it by no means disproves the charge that the injurious statements and the imputation of an offence were false . The defence ’s contention that the proving of the injurious statements obeys the normal rules on distribution of the burden of proof in criminal proceedings is incorrect and illogical precisely because of the ORG interest in proving their charge . Article CARDINAL § § CARDINAL and CARDINAL [ of LAW ] provides that the burden of proof ... is on the private prosecuting party . [ The applicant ] is not required to prove her innocence . However , in the circumstances , seeing that the complainants have no interest in triggering the application of LAW [ of LAW ] , because this would lead to the non - imposition of the punishment they seek , it has to be accepted that the burden of proof shifts to [ the applicant ] . [ The lower court ’s ] conclusions on this point are correct . Of course , ... [ the applicant ] does not have the onus of proving the charges , but merely the existence of the prerequisites for not punishing her under LAW [ of LAW ] . The burden of proving the charges rests with the complainants .

As to [ the applicant ’s ] objection that [ she acted without mens rea ] , [ this court ] accepts the defence ’s argument that [ the applicant ] did not act with direct intent to defame the complainants ... as incorrectly held by [ the lower court ] . However , as a whole the objection that she acted without mens rea and thus did not commit an offence is groundless . In reply to the ORG rebuttal of the article , published in ORG on DATE , in the same issue of the newspaper [ the applicant ] wrote a note in her capacity as the article ’s author . Part of the content of this note : ‘ Dear ladies and gentlemen educationalists , please accept my apologies if I have offended you by imputing to you acts that you did not ORG , as well as [ the applicant ’s ] explanation [ at trial ] that she did not write the article with the intention of offending anyone , lead the court to accept that [ she ] perpetrated the offence with oblique intent ... She was aware of the antisocial character of her act . She foresaw its harmful consequences , namely that the newspaper ’s readers would learn of her assertions that the complainants were to be dismissed for corruption and about the offence of bribery imputed to them , which would inevitably negatively affect their reputations . [ The applicant ] did not wish these harmful consequences to occur as a direct result of her act . However , in pursuing her direct , and in principle noble , goal not to allow children to suffer detriment in the process of applying for admission to elite secondary schools , she knowingly accepted that these consequences would inevitably occur . This positive attitude towards the result of the offence makes her act unlawful .

In order not to have the intention of committing defamation , the accused must be certain , on the basis of objective facts , that the injurious statements or the imputation are true . The information contained in the testimony of [ a witness for the applicant ] and the article in the issue of ORG under the headline ‘ Bribes scandal in GPE secondary schools’ ... , in which the complainants are accused of corruption , is not based on such objective facts . It could not give [ the applicant ] a justified assurance that the injurious statements and the imputation were true . [ The lower court ] remarked correctly that not a single parent or pupil who gave such information to the applicant had been named . The [ abovementioned witness for the applicant ] does not say which parents of children who were denied admission complained to him that ‘ sums of CARDINAL GPE ] dollars were pocketed to allow in [ healthy ] children instead of sick ones’ ... Contrary to her assertions , [ the applicant ] did not carry out a proper journalistic inquiry before drafting her article . [ Her assertions ] that she received the information from the parents of children who were not admitted ( which were not corroborated by the testimony of any parent ) and that the information in the article ... in DATE issue of ORG confirmed the allegations in the impugned article do not lend support to [ her ] argument that she ‘ complied with all possible requirements of goodfaith ORG . In accordance with the principle that journalists have to be objective , proper journalistic inquiry requires them to check the reliability of their sources . In the instant case , [ the applicant ] could have asked the [ ORG and ORG ] about the reasons behind and the content of the [ GPE ] letter mentioned in the article in ORG . Counsel for [ the applicant ] mistakenly objects that [ she ] had not been made aware that [ the ORG ] had received an alert from protesting parents . In line CARDINAL of the impugned article [ the applicant ] pointed out that [ the ORG ’s internal inquiry ] had been ordered by [ the Minister ] pursuant to ‘ an ALERT concerning bribetaking’ . She was obviously aware of an alert ( a letter ) received by [ the ORG ] . There is no indication in the case file that any of the protesting parents or children with whom [ the applicant ] claims she conversed many times said that the complainants had engaged in corrupt acts . If [ the applicant ] had checked what alert had been received by [ the ORG ] and the exact reason why [ the Minister ] had ordered an [ internal inquiry ] , she would have no doubt reached a different conclusion . The protesting parents complained about ‘ the ruthless race between doctors to earn more money by giving false diagnoses to minors applying for admission to secondary schools’ ... It is not disputed that none of the complainants is a medical doctor . Clearly , then , the protests were directed against the actions of the doctors , not against those of the commission of which the CARDINAL complainants were members . No complaints of corrupt acts on the part of the complainants from parents , pupils or officials were received by [ the Ministry ] or by the [ newly ] formed ‘ ORG for the Salvation of Burgas’ , of which [ the abovementioned witness ] is a member . [ When giving evidence at trial , this witness ] testified about a complaint which he had received from CARDINAL or QUANTITY individuals who had confided that they had each given CARDINAL [ GPE ] dollars to a member of the commission . He had shared this information with [ the applicant ] . The information did not , however , contain objective facts capable of convincing [ the applicant ] as a journalist of the truthfulness of what she wrote in the article and thus absolving her of any intention to defame . On the CARDINAL hand , [ the witness ] did not name any specific individual who was in a position to confirm his words , and , on the other , the corruption complaint concerned CARDINAL ( unidentified ) member of the commission , not all CARDINAL complainants as asserted in the article . It should also be noted that there was a further member of the commission who is not a complainant [ in this case ] , the witness PERSON The [ internal inquiry ] carried out following complaints by parents had the task of checking whether the complainants had , as members of the commission , complied with [ certain Ministry regulations ] , not whether they had taken bribes . For these reasons , [ the court ] finds no force in the defence ’s argument that [ the applicant ’s ] intent did not comprise the inaccuracy of the injurious statements disseminated and of the imputation of an offence . Even though the sources ... mentioned by [ the applicant ] herself could not , in the circumstances , have assured [ her ] of the reality of the situation , [ she ] wrote the impugned article . As correctly found by [ the lower court ] , [ the applicant ] did not use a source for the amount of the bribe – ‘ CARDINAL [ GPE ] ORG – , but made the calculation herself by multiplying CARDINAL children by MONEY . The above shows that the journalistic objectivity and thorough research required of each publication were lacking .

As regards [ the applicant ’s ] complaint that the conviction and sentence infringed her freedom to express her opinions and impart information , [ the lower court ] has given weighty reasons why this complaint is unfounded , in view of [ the applicant ’s ] unacceptable infringement of the ORG competing fundamental and hence constitutionally guaranteed right under LAW ] to a good name . [ The lower court ] correctly referred to and construed Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of [ the LAW ] and LAW of LAW , and rightly held that [ the applicant ’s ] right to impart information could not be used to infringe the rights and the good name of the complainants in the manner described above . Analysis of these provisions and of the rules of Articles CARDINAL , CARDINAL et seq . [ of LAW ] defining the offences concerned and enacted to guarantee compliance with the above provisions , makes it clear that journalists must exercise their constitutional right to express opinions and impart information in a way which excludes the commission of the offences of insult or defamation . Naturally , the principles of democracy and freedom of speech , as well as the public interest , require journalists to be able to publish in the media facts established as a result of proper journalistic inquiries , even though these facts may damage people ’s reputations . However , journalists must verify the truthfulness of their statements by using every available means to check the reliability of the information [ they ] receive . [ The applicant ] failed to do so despite having the objective opportunity . The wording of LAW [ of LAW ] shows that in their articles journalists may disseminate injurious statements of fact or impute offences to others without fearing punishment , provided that they are able to prove the veracity of their assertions .

[ This court ] fully accepts the defence argument that through her actions [ the applicant ] sought to safeguard the interest of the public and in particular , as averred by her , the interests of the seventyfour children who had applied for admission to secondary schools . Motivation is , however , not an exculpating circumstance , but only a mitigating one ...

For these reasons , [ the lower court ] was correct in holding that [ the applicant ] met the conduct and fault criteria ... of the offence of defamation ...

Concerning the punishment : [ The lower court ] correctly applied the substantive law , as the prerequisites of Article CARDINALa [ of LAW ] are met in respect of each of [ the applicant ’s ] offences . The quantum of the administrative punishments was also set correctly ... The [ ORG ] request for harsher penalties than those imposed by [ the lower court ] is illfounded in view of the additional mitigating circumstances noted by this court . These are the specific motivation , the form of the mens rea and the applicant ’s use of the future ( that is , uncertain ) tense . Taken together with the mitigating circumstances already noted by [ the lower court ] , these warrant imposing less than the maximum penalty . The fact that the complainants are public officials is not a reason to allow their appeal either , because this aggravating circumstance has already been taken into account in framing the elements of the offence . On the other hand , the fact that the offence imputed to the complainants was a serious and intentional one shows that [ the applicant ’s ] act was highly dangerous and makes it unacceptable to reduce the penalties imposed by [ the lower court ] to below the average .

As regards the civil claims , this court fully shares the reasons given by [ the lower court ] for finding [ the applicant ] liable in tort for the damage caused ... to each of the complainants . [ The lower court ’s ] opinion that an award of ORG MONEY to each of [ the complainants ] is just fully coincides with [ this court ’s ] notion of equity . The award should therefore not be increased as requested by the complainants .

[ The lower court ’s ] judgment is wellfounded and lawful and must therefore be upheld . ”

The court also ordered the applicant to pay the ORG costs for the appeal proceedings , amounting to ORG CARDINAL for each of them .

All CARDINAL complainants issued enforcement proceedings against the applicant to recover the damages awarded to them . As a result , each of them obtained payment of ORG CARDINAL . In CARDINAL of those cases , and in connection with the applicant ’s debt towards the ORG treasury , an enforcement judge attached CARDINAL of a flat belonging to the applicant . At the time of the latest information from her ( CARDINAL DATE ) , the attachment order had not been lifted because ORG CARDINAL of her debt towards the treasury remained outstanding .

On DATE a member of ORG officially questioned the Minister of ORG and ORG about the affair . On DATE the Minister replied , saying , inter alia , that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings , which was a matter for the prosecuting authorities .

On DATE the applicant , together with CARDINAL officials of ORG and ORG , testified about the “ sick children ” affair before ORG . At the end of the hearing ORG unanimously resolved to send the material to the GPE prosecuting authorities with a view to the possible initiation of criminal proceedings against PERSON , PERSON , Mr PERSON and Mr PERSON , asking the Minister of Health whether the medical doctors responsible had been punished , and asking the Minister of Education and ORG whether penalties had been imposed on PERSON , Ms A.M. , Mr PERSON and Mr PERSON and whether the penalties had corresponded to the posts they occupied .

The relevant provisions of the DATE LAW read as follows :

“ The private life of citizens shall be inviolable . All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour , dignity and reputation . ”

“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , whether written or oral , sounds or images , or in any other way .

NORP That right shall not be exercised to the detriment of the rights and reputation of others , or for incitement to forcible change of the constitutionally established order , perpetration of a crime or enmity or violence against anyone . ”

“ The press and the other mass media shall be free and not subject to censorship . ”

“ CARDINAL . Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens or against national security , public order , public health or morals .

NORP Citizens shall have the right to information from ORG bodies or agencies on any matter of legitimate interest to them , unless the information is a ORG secret or a secret protected by law or it affects the rights of others . ”

“ Rights shall not be abused , nor shall they be exercised to the detriment of the rights or the legitimate interests of others . ”

Article CARDINAL of the DATE LAW , as in force since DATE , provides as follows :

“ CARDINAL . Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from MONEY , as well as by public reprimand .

NORP The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation . ”

If the defamation is committed through the printed press , or if the defamed parties are public officials carrying out their duties , it is punishable by a fine ranging from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL , as well as by public reprimand ( Article CARDINAL § § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL , as in force since DATE ) . Since DATE all instances of defamation are privately prosecutable offences ( Article CARDINAL , as in force since DATE ) . In DATE Article CARDINAL survived a challenge of unconstitutionality , with the ORG ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression ( реш. № CARDINAL от DATE г. по к. д. № DATE г. , обн. , GPE , бр. CARDINAL от CARDINAL юли DATE г. ) .

The mens rea for the offence of defamation can only be direct intent or oblique intent ( recklessness ) , not negligence ( Article CARDINAL(CARDINAL ) ) . PERSON , in the form of intent or negligence , is an essential element of any criminal offence ( LAW and LAW , DATE and CARDINAL ) .

In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) ORG held that provided that , prior to publication , journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium , by using the sources available in practice , they could not be held to have acted wilfully or even negligently and were not guilty of defamation . It went on to say that , owing to the accessory nature of a civilparty claim , the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings . In such proceedings , the rules governing fault as an element of the tort of defamation were those of the criminal law . The court also held that under NORP law strict liability could not be applied in respect of defamation , and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals .

Article CARDINAL § CARDINAL , as in force at the relevant time , mandated the courts to replace convicted ORG criminal liability with an administrative punishment DATE a fine ranging from MONEY – if ( i ) the offence of which they had been convicted was punishable by DATE imprisonment or a lesser penalty , in respect of an intentional offence , ( ii ) they had not previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment , and ( iii ) the pecuniary damage caused by the criminal act had been made good . The administrative fine could not be higher than the criminal fine envisaged for the offence ( LAW ) . Along with the fine the court could impose occupational disqualification of DATE , if such a punishment was envisaged for the offence ( LAW ) .

According to the doctrine , to make out the defence of truth under LAW , defendants do not need to prove that a complainant has been convicted by means of a final decision ; the institution and outcome of criminal proceedings against the complainant are irrelevant ( GPE , ORG , PERSON , ORG , DATE г. , стр. DATE ) .

On DATE ORG of ORG DATE ) , Towards decriminalisation of defamation , in which it called on GPE to , inter alia , guarantee that there is no misuse of criminal prosecutions for defamation ( point CARDINAL ) ; remove from their defamation legislation any increased protection for public figures ( point CARDINAL ) ; ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves , in particular means based on establishing the truth of their assertions and on the general interest ( point CARDINAL ) ; set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk ( point CARDINAL ) ; and provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury ( point CARDINAL ) .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Braslovče .

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

On DATE the applicant was injured in a car accident caused by a third person . The perpetrator ’s liability was insured with the insurance company ORG ( “ T ” ) .

On DATE the applicant instituted indemnity proceedings in ORG ( Okrožno sodišče v PERSON ) , claiming damages in the amount of CARDINAL tolars ( SIT ) . He requested to be exempted from payment of the court fees .

On DATE , DATE and DATE and on DATE the applicant filed pleadings and/or submitted fresh evidence and/or requested that a date be set for a hearing .

On DATE the hearing was held and the applicant ’s proposal for the appointment of a traffic expert was upheld .

On DATE , CARDINAL May and DATE the applicant requested that a date be set for a hearing .

NORP On DATE the applicant filed pleadings and submitted new evidence .

On DATE the court requested ORG to consult a case - file in criminal proceedings . On DATE the latter replied that the criminal proceedings were still pending before ORG . On DATE the ORG repeated its request and on DATE it received the criminal case - file .

On DATE the applicant filed pleadings .

On DATE the applicant requested that a date be set for a hearing .

On DATE a hearing was held . The court upheld the applicant ’s request to appoint CARDINAL experts lodged on DATE . On DATE they submitted their expert opinions .

On DATE the applicant filed submissions .

On DATE , following the ORG ’s dismissal of CARDINAL expert , a new expert was appointed .

On DATE the applicant filed pleadings and on CARDINAL May CARDINAL he requested that a date be set for a hearing .

On DATE the applicant increased his request .

On DATE and DATE hearings were held .

On DATE the court delivered a judgment , upholding the applicant ’s claim in part . The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal and requested ORG to correct the judgment .

NORP The proceedings are pending .


Preliminary objection dismissed (Article 35-3 - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Civil rights and obligations;Determination (civil);Dispute;Fair hearing)

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in FAC ( ORG , GPE ) .

On DATE she went to the gendarmerie in ORG to file a complaint of having been assaulted by her CARDINAL children . She said that her children had come to see her about a lawsuit between them concerning the non - payment of maintenance to which she was entitled because of her ill - health . While the applicant was in the front passenger seat of a motor car driven by her daughter , her son , who was in the back , had allegedly immobilised her and used a syringe to inject her twice with an unknown substance . She said she had quickly got out of the car and gone to hospital .

The applicant was found to have marks of injections . Moreover , after a witness had come forward , the gendarmes found a syringe which when tested was found to bear traces of diazepam and benzoic acid , both of which also form part of the chemical make - up of valium .

An investigation was begun on the grounds of assault with an offensive weapon resulting in total unfitness for work for DATE ( reduced to less than that during the investigation ) .

During the investigation , the applicant joined the proceedings as a civil party .

On DATE the Saint - Pierre investigating judge ruled that there was no case to answer on the ground that there was insufficient evidence that anyone had committed the offence . He found that the applicant 's son , “ who had allegedly given her the injection , had left the département to return to his dental practice abroad , in GPE ” , that “ he had given his mother an injection of a substance which was medically harmless at that dosage ... ” and “ that , in the absence of precise information as to his address , it did not [ seem ] practicable to interview [ the son ] given the difficulty of enforcing any request for evidence to be taken on oath in GPE ” . The decision was apparently served on the applicant on DATE by registered post with acknowledgment of receipt .

On DATE the applicant went to the investigating judge 's registry and , claiming that she had not received a copy of the decision , refused to sign the notice of appeal drafted by the registrar . She asserted that she had drafted a personal notice of appeal and lodged it at the registry on that same day . In her written observations to the court of appeal , the applicant requested , inter alia , that the investigating judge be made to stand down , that the investigation be resumed , that it be formally recorded that “ her complaint [ related to ] premeditated assault with an offensive weapon resulting in DATE total unfitness for work and , given the results of the tests on the syringe , with criminal intent ” , and that her children be “ brought to the département by force in order to explain themselves ” .

By a judgment of DATE , ORG of ORG of PERSON found that the applicant had appealed “ by letter addressed to and received on DATE by the investigating judge 's registry ” , and that she had gone to the registry on DATE and refused to sign the notice of appeal . ORG therefore ruled that her appeal was inadmissible on the grounds that she had missed the legal deadline and had failed to sign the notice of appeal .

On DATE the applicant appealed on points of law . On DATE she filed personal observations in which she submitted that ORG had , in its judgment of DATE , disregarded certain provisions of LAW : firstly , “ the judgment did not meet the essential conditions required for it to be lawful ” , having been given by “ judges who had not attended all the hearings in the case ” and , secondly , the grounds set out in the impugned judgment relating to service of the decision that there was no case to answer were “ insufficient ” because they did not address the arguments she had put forward at the hearing . She alleged that there had been a breach of Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure .

In a judgment of DATE , ORG dismissed her appeal in the following terms :

Given the personal written observations filed ;

On the sole ground of appeal , based on a breach of ORG CARDINAL and CARDINAL of LAW ;

Whereas , firstly , the particulars of the judgment under appeal establish that it was given in the conditions prescribed by LAW paragraph , of LAW ;

Whereas , secondly , ORG was correct in finding that the appeal of DATE against the decision that there was no case to answer served on DATE was out of time in accordance with the conditions laid down in LAW ;

The relevant provisions are as follows :

“ Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for the damage he has caused not only by his own acts , but also by his negligence or carelessness . ”

“ Everyone shall be liable not only for the damage caused by his own act but also for that caused by persons for whom he is responsible or by things he has in his keeping . ”

“ I. – Criminal proceedings shall be fair and provide for all parties to be heard and shall maintain a balance between the rights of the parties .

II . – The courts shall ensure that victims are kept informed and their rights safeguarded during any criminal proceedings .

“ Public prosecutions for the punishment of offenders shall be brought and conducted by officers of the ORG legal service or by those public officials empowered to do so by law .

Such prosecutions may also be brought by the injured party , under the conditions laid down in this LAW . ”

“ Anyone who has personally suffered damage directly caused by a criminal offence may bring civil - party proceedings to seek compensation for such damage .

Discontinuance of such proceedings shall neither terminate nor stay the public prosecution ... ”

“ Civil - party proceedings may be conducted simultaneously with the public prosecution and before the same court .

Civil - party proceedings may be brought for any head of damage , whether pecuniary or physical or non - pecuniary , caused by the acts under prosecution . ”

“ Civil - party proceedings may also be conducted separately from the public prosecution .

However , judgment in civil - party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution . ”

“ A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecution has preferred charges in that court before the civil court has ruled on the merits . ”

“ An investigating judge may , of his own motion , on the instructions of the prosecuting authorities or at the request of the civil party , do anything lawful to enable him to assess the nature and extent of the damage suffered by the victim or to gather information about the victim 's personality . ”

“ The parties may , during the investigation , submit a written and reasoned request to the investigating judge that they be interviewed or questioned , that a witness be heard , that a confrontation be arranged or that they be taken to the scene of the crime , that CARDINAL of them be ordered to produce an item relevant to the investigation , or that any other action be taken which they believe is necessary for uncovering the truth . In order to be valid , such a request must comply with the provisions of the tenth paragraph of LAW ; it must relate to specific actions and , where it relates to an interview , must identify the person sought to be interviewed . ”

“ Anyone who claims to have suffered damage as a result of a serious crime [ crime ] or other serious offence [ délit ] may , by lodging a criminal complaint , join the criminal proceedings as a civil party on application to the appropriate investigating judge . ”

“ A civil - party application may be made at any time during the investigation . ”

“ The investigating judge shall record in an order the lodging of the complaint . According to the civil party 's means , he shall determine the amount of security for costs which that party must , if he has not obtained legal aid , deposit at the registry and the time - limit for doing so if the complaint is not to be declared inadmissible . He may exempt the civil party from paying security . ”

“ A civil party may appeal against decisions not to begin or to discontinue the investigation and against orders that harm his civil interests . ... ”

“ Anyone who , in accordance with LAW , claims to have suffered damage caused by a criminal offence may , if he has not already done so , lodge a civil - party complaint at the hearing itself .

Representation by a lawyer is not mandatory .

A civil party may , in support of his complaint , file a claim for damages in the amount of the loss he has suffered . ”

“ A civil party shall lodge his complaint either prior to the hearing at the registry or during the hearing itself by making a declaration recorded by the registrar or by filing pleadings . ”

With the consent of the public prosecutor , the victim may also file a claim during the police investigation for restitution or damages by making a formal statement recorded by a police officer . Such a claim shall count as a civil - party complaint if it is decided to prosecute and the case is referred directly to a criminal or police court .

In the event of a dispute over the ownership of the objects whose restitution is requested or where the court does not find sufficient reasons for a decision in the claim itself , the supporting documents or the file , the decision on the civil claim shall be adjourned to a later hearing to which all parties shall be summoned by the prosecution . ”

Articles DATE to CARDINAL concern the exercise of civil - party rights by associations or public - law entities .

NORP In order for a civil - party complaint to be admissible , it is sufficient if the circumstances on which it is based permit the investigating judge to accept the possibility that the alleged damage may have occurred and that there may be a direct link between that damage and the commission of an offence ( see , inter alia : judgments of ORG ( “ PERSON . crim . ” ) , DATE , ORG , DATE , p. CARDINAL ; CARDINAL DATE , Bulletin criminel ( “ Bull . crim . ” ) no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ) . The investigating judge must determine whether the complainant can establish a “ possible ” interest in lodging the complaint , and not find a civil - party application inadmissible on purely abstract grounds for lack of such an interest ( PERSON . crim . , DATE , ORG . crim . no . CARDINAL ) . A decision by the investigating judge that a civil - party application is inadmissible does not prevent the party in question from lodging a further complaint with the trial court ( PERSON . crim . , CARDINAL DATE , ORG . crim . no . CARDINAL ) .

The Court of Cassation considers that a civil party is free not to exercise his right to claim compensation for his losses ( PERSON . crim . , CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ) .

Even where compensation for losses falls outside the competence of the criminal courts , a civil - party application is admissible in so far as it assists in proving the offence ( PERSON . crim . , CARDINAL DATE , ORG . crim . no . CARDINAL ) .

“ Civil proceedings must await the outcome of criminal proceedings ” ( LAW ) . The civil court must suspend judgment until the criminal court has issued a final ruling in the prosecution . The prosecution must be brought before or during the civil trial . The CARDINAL sets of proceedings must be based on the same facts , even though the purpose , case and parties do not have to be identical . An application for a suspension must be made to the civil judge , and may be made for the first time at the appeal stage or before ORG . Once ordered , a stay is binding on both the civil court and the parties until a final decision has been made in the prosecution , failing which the civil proceedings are null and void .

“ A final criminal judgment prevails over a civil claim . ” A civil court is bound by the final decision in a prosecution . The primacy of a decision in a criminal case is not prescribed by law in the strict sense but derives from case - law . It is an absolute rule , binding not only on the parties to the criminal trial but also on third parties . As application of the rule is not mandatory on public policy grounds , this rule can not be relied on by the prosecution or by the judge of his own motion . Decisions by investigating judges are not binding on the civil courts . Accordingly , the only criminal decisions which are binding are the final and irrevocable decisions of the trial courts . Moreover a civil court is bound only by “ findings of a criminal nature ” : a civil court hearing a civil case will be bound by an acquittal , but not by that part of the criminal court 's decision which deals with a claim for damages . Such “ findings ” , namely the reasons and the operative part , must be “ certain ” ( which excludes findings expressed in doubtful or uncertain terms , except for acquittals “ for lack of evidence ” which are binding on a civil court ) and “ necessary ” ( what the judge must find to justify his decision – the elements of the offence , its classification , the aggravating circumstances which determine such classification , and the finding of guilt or not as the case may be ) . Generally speaking , the reasons do not have the same binding effect as the operative part unless they form its essential underpinning .

Recommendation No . R ( CARDINAL ) CARDINAL on participation of the public in crime policy , adopted by ORG on DATE , advocates the establishment of an efficient system of legal aid for victims so that they may have access to justice in all circumstances .

Recommendation No . R ( CARDINAL ) CARDINAL on the position of the victim in the framework of criminal law and procedure , adopted by ORG on DATE , provides :

The victim should be informed of

– the date and place of a hearing concerning an offence which caused him suffering ;

– his opportunities of obtaining restitution and compensation within the criminal justice process , legal assistance and advice ;

– how he can find out the outcome of the case ;

It should be possible for a criminal court to order compensation by the offender to the victim . To that end , existing limitations , restrictions or technical impediments which prevent such a possibility from being generally realised should be abolished ;

Legislation should provide that compensation may either be a penal sanction , or a substitute for a penal sanction or be awarded in addition to a penal sanction ;

All relevant information concerning the injuries and losses suffered by the victim should be made available to the court in order that it may , when deciding upon the form and the quantum of the sentence , take into account :

– the victim 's need for compensation ;

– any compensation or restitution made by the offender or any genuine effort to that end ;

In cases where the possibilities open to a court include attaching financial conditions to the award of a deferred or suspended sentence , of a probation order or of any other measure , great importance should be given among these conditions to compensation by the offender to the victim ;

Recommendation No . R ( CARDINAL ) CARDINAL on assistance to victims and the prevention of victimisation , adopted by ORG on DATE , “ recommends that the governments of member GPE take the following measures ” :

NORP ensure that victims and their families , especially those who are most vulnerable , receive in particular :

– assistance during the criminal process , with due respect to the defence ;

Recommendation Rec(CARDINAL)CARDINAL on the role of public prosecution in the criminal justice system , adopted by ORG on DATE , provides :

Interested parties of recognised or identifiable status , in particular victims , should be able to challenge decisions of public prosecutors not to prosecute ; such a challenge may be made , where appropriate after an hierarchical review , either by way of judicial review , or by authorising parties to engage private prosecution . ”


Violation of Art. 6-1;Just satisfaction reserved

Dr. PERSON is a medical practitioner . He was born in DATE , lives at PERSON and is a NORP national .

By letter of DATE , ORG of the Ordre des médecins ( Medical Association ) notified him of the opening of an enquiry regarding him ; it summoned him to appear before its Bureau on DATE to answer questions in connection with a series of certificates of unfitness for work issued by him , asking him to bring with him the medical files of the patients concerned .

The applicant appeared on the prescribed date . ORG informed him that he was accused of having issued spurious certificates .

On DATE , the President of ORG sent Dr. PERSON a registered letter which read :

" Dear Colleague ,

ORG requests the honour of your appearance before it on DATE , DATE at TIME , CARDINAL ORG , in order to present your defence in connection with the following complaint , namely that of

- having issued various certificates of unfitness for work , in particular :

on CARDINAL to B ... , on DATE to T ... , on CARDINAL.CARDINAL.CARDINAL to A ... ,

without having satisfied yourself in a strict manner , by means of a sufficiently thorough examination , of the justification of the unfitness for work and while not possessing any medical record in relation to these patients ,

these facts having compromised the reputation , probity and dignity of the medical profession .

The case - file concerning you may be consulted at the ORG ’s office on DATE from TIME until TIME , and from TIME , except on DATE TIME , from DATE inclusive .

You may be assisted by CARDINAL or more lawyers .

Yours faithfully ... "

On DATE , ORG heard Dr. PERSON and suspended his right to practise medicine for a period of DATE . It found that Dr. PERSON had " carried out no medical examinations such as to warrant finding a state of unfitness for work " , that he had been unable to produce " any medical document whatsoever capable of establishing " such a state , and that neither had " his memory permitted him ... to come forward with any justification " . It considered that " it ought to impose a very severe sanction " in view of " the very serious disciplinary record " of the applicant ( CARDINAL suspensions from practice following criminal convictions ) .

Mr. PERSON was notified of the decision on DATE .

Dr. PERSON appealed to the NORP - language ORG of the Ordre on DATE . ORG legal assessor did likewise on DATE in order to have the penalty increased .

On DATE , ORG upheld the decision given at first instance .

By judgment of CARDINAL DATE , ORG rejected the applicant ’s appeal on a point of law alleging violation of the rights of defence and , in so far as relevant , of LAW .

Dr. PERSON , a NORP national born in DATE and living at ORG , is a medical practitioner .

On CARDINAL DATE , ORG of the Ordre des médecins informed him that an enquiry had been ordered concerning him for " improper publicity " ( ongeoorloofde publiciteit ) and " contempt ( beledigingen ) of the ORG " : he had given CARDINAL interviews to magazines and sent a letter to the President of ORG .

On DATE , the applicant wrote to the said President to advise him of his intention to exercise his right , under sections CARDINAL an CARDINAL of LAW of DATE , to challenge ORG members as a whole .

On DATE , ORG , by decision rendered in absentia , rejected the applicant ’s challenge and suspended his right to practise medicine for DATE .

The applicant entered an appeal on DATE . He alleged , amongst other things , violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention :

" This provision of the ORG guarantees to a litigant that his case will be dealt with at a public hearing by an independent and impartial tribunal . neither of these CARDINAL guarantees was assured .

( a ) Cases before the Councils of the Ordre des médecins are not dealt with at a public hearing even though no reason of public policy exists for dealing with cases in camera or , at least , for pronouncing decisions in camera . Consequently , honest treatment in accordance with the principles of LAW is rendered impossible .

( b ) ORG are , by reason of their membership alone , neither independent nor impartial since CARDINAL of their members are other medical practitioners . " ( Translation from NORP )

The legal assessor of ORG did not avail himself of his own right to appeal .

On DATE , the NORP - language ORG rejected the grounds challenging its members and changed the applicants’ suspension into striking his name from the register of the ORG .

On DATE , Dr. PERSON lodged an objection ( opposition ) against this decision , which had been given in absentia .

As he had been summoned to appear at a hearing on DATE , he lodged a further challenge on DATE against ORG members as a whole .

On DATE , ORG rejected both the objection and the challenge .

The applicant thereupon appealed on a point of law to the court of Cassation , but his appeal was dismissed by judgment of DATE , which was notified to him on DATE .

The striking of Dr. PERSON name from the register of the ORG took effect on DATE .

Under sections CARDINAL para . CARDINAL and CARDINAL of LAW No . CARDINAL of DATE and section CARDINAL para . CARDINAL of Royal Decree No . CARDINAL of DATE , being struck off the register has the consequence of debarring him from practising medicine .

NORP legislation on the ORG , particularly on the organs of the ORG and the procedure followed in disciplinary matters , is described in FAC , PERSON and ORG judgment of DATE ( Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL ) . The ORG refers back to this judgment in this connection .


The applicant , PERSON , is a NORP national who was born in DATE . She was represented before the ORG by PERSON , a lawyer practising in Linköping . 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 arrived in GPE on DATE and applied for asylum .

At an initial interview conducted by ORG ( Migrationsverket ) on DATE , the applicant stated , inter alia , that she had been born in GPE , in the south - west of GPE , and had gone to school and always lived in GPE in that state . She belonged to the ethnic group GPE and was a NORP . She submitted a certificate of registration of birth dated DATE and a copy of an article published in the newspaper ORG DATE . The article , entitled “ A Pregnant Teenager NORP Girl Elopes To LOC ? ” , stated the following :

“ A young DATE , PERSON of ORG in the LOC part of GPE is reported to be on the run , having fled from DATE , PERSON whom she was engaged to . Feeling that she did not like the man she was betrothed to , young PERSON is alleged to have become pregnant by her younger lover , a discovery that she has not found to be comfortable with in her ORG .

By the LAW laws , being pregnant by another man while being engaged is regarded as adulterous and the penalty would mean condemnation to death . The matter has been reported to the head of her village in GPE - Ala and the NORP clerics have declared PERSON wanted . A search to the hometown of her lover in GPE , in the NORP part of the country has proved abortive so far since the event came to light some DATE .

Fears are expressed that Miss PERSON may have eloped outside the country with her lover but that can not be confirmed as at the time of filing this report . ”

Below the article was a picture allegedly depicting the applicant .

At the interview , the applicant stated that she had last been in contact with her boyfriend “ ... when [ she ] had this problem , in DATE . In DATE and DATE [ she ] was still in contact with him , but now [ she ] no longer had any contact with him . ... [ She ] saw him last in DATE ” . She further stated that she had not wanted to get married to the DATE man suggested by her father , and she had told her father that she already had a boyfriend . She was however married against her will . After a while she discovered that she was pregnant . She told her father who got very angry . Later , her father showed her the newspaper article and told her that she had to escape to save her life . Her boyfriend had contacted and paid a business woman who had helped her to leave GPE .

A second interview was held with the applicant on DATE . The applicant then stated that she lived in GPE in ORG , in central GPE . She had been married for DATE . When her husband had learned about her pregnancy he had beaten her severely , after which she had left to stay with her aunt . She was at her aunt ’s for DATE until her aunt arranged for her journey to GPE . She had seen in the newspaper that she was wanted by the village chief and that she was to be stoned to death . She did not know exactly how long she had been pregnant but she believed that it had been DATE .

On DATE ORG rejected the applicant ’s application for asylum . It remarked that , according to the newspaper article submitted by the applicant , the incidents had taken place in DATE , whereas the applicant had stated that she got married in DATE and that the incidents leading to her leaving the country had occurred DATE after the marriage . The ORG found that , irrespective of the truthfulness of her story , the applicant had not made a sufficiently probable case that she would not receive any protection or help from the NORP authorities . Protection from criminal actions and assault was a matter for the domestic authorities , and it appeared that the applicant had not reported the incidents to the police . ORG concluded that the applicant had not been able to show that , upon return to GPE , she would be treated in a manner which would entitle her to refugee status or protection . It further concluded that , having regard to the very restrictive practice concerning the grant of a residence permit on humanitarian grounds , the facts in the instant case were not sufficient to warrant such a permit .

On DATE the applicant gave birth to a son .

The applicant appealed to ORG ( Utlännings - nämnden ) . ORG also referred to ORG the applicant ’s request for a residence permit concerning her son .

In the appeal , the applicant ’s representative stated that the applicant had been beaten by her husband when he found out about her infidelity and , on DATE , she had escaped to her aunt ’s home . According to the representative , the applicant had been sentenced to death by the council in her husband ’s village . In a subsequent letter to ORG , the representative stated , in relation to the comments of ORG regarding the dates mentioned in the article and those given by the applicant herself , that the applicant was a very young , inexperienced girl who had a great respect for authority and had not been fully aware of the length of a pregnancy . However , she was certain that she had been married in DATE and had become pregnant in DATE .

On DATE ORG rejected the applicant ’s appeal and the application concerning her son . It concluded that the applicant ’s identity was unclear and that the time frames given by her were not compatible with the information in the NORP newspaper article . The time indicated for the “ event ” in the article was also inaccurate in relation to the time of birth of her baby . Due to the above , and considering the applicant ’s case as a whole , ORG found that she had not shown that she was to be regarded as a refugee or as a person otherwise in need of protection . Nor did it find any humanitarian grounds to warrant a residence permit .