David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

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

On DATE officers from ORG , together with specialist firearms officers from ORG , took part in ORG , a pre - planned firearms operation centred on the applicant and CARDINAL other men . All CARDINAL had been the subject of police surveillance following the receipt of intelligence information that they were planning to steal gold bullion from the secure facility of a metal processing plant in GPE . The intelligence stated that the CARDINAL men would be armed with guns and wearing body armour .

The intelligence proved to be correct . Around TIME on DATE the applicant and his CARDINAL accomplices stole CARDINAL PERSON worth of gold bullion at gunpoint . They left the scene in a car which was intercepted by ORG officers when it stopped at traffic lights . The officers fired breaching rounds ( designed to destroy door locks and hinges without causing human injury ) at the car tyres in an attempt to disable it but this initially proved unsuccessful . The car was driven off at speed but forced to stop further up the road , when more breaching rounds were fired at it . Just before the car stopped , officers saw a handgun thrown out of CARDINAL of the doors . Armed officers surrounded the stationary vehicle and directed the occupants to get out .

NORP The applicants’ CARDINAL accomplices , CARDINAL seated in the driver ’s seat and CARDINAL in the back of the car , were arrested without injury . The applicant , however , received injuries to his face and hands . The arresting police officers claimed that the applicant , a large man and a former wrestling champion , violently resisted arrest . In their statements to ORG investigators ( see paragraph CARDINAL below ) , the officers stated that they dragged the applicant from the car , punched him in the face , pulled him to the ground and kicked him at least twice , because he would not obey their instructions to remove his hands from under his body so that they could be sure he was not attempting to use a weapon . The officers stated that while the applicant was on the ground a taser was applied to him CARDINAL times in “ drive stun mode ” . A taser is a weapon which uses electrical current to disrupt voluntary control of muscles . When used at a distance , a dart is fired which emits an electric charge and causes immediate , involuntary and short - lasting loss of muscle control . In “ drive stun mode ” , the taser is applied directly to the body . No dart is fired and pain , rather than loss of muscle control , is used as a means of coercion . According to the police officers , the taser in “ drive stun mode ” was applied once to the applicant ’s back , but did not have the required effect because the applicant was wearing body armour . It was then applied once to the back of the applicant ’s neck and twice on his leg . It was then possible to bind the applicant ’s wrists behind his back with “ plasticuffs ” . First aid was administered to him and he was taken to the police station . A search of the ground near the car found a loaded CARDINAL semi - automatic handgun . The applicant was found to have a can of mace ( a prohibited tear gas spray ) in his pocket .

The applicant claimed that when the car pulled over he expected to be arrested . He was carrying an unloaded gun , which he dropped in the QUANTITY - well of the car . He remembered getting out of the car and going down on all fours on the floor , to demonstrate surrender . His next memory was sitting or standing against a wall with his hands cuffed behind his back . CARDINAL of the other men arrested with him later claimed to have seen a taser gun used on the back of the applicant ’s neck CARDINAL times and to have seen police officers kicking and punching the applicant ’s head and upper body , for DATE TIME .

NORP On arrival at the police station , the arresting officers were examined by a forensic medical examiner , who found them uninjured . The applicant was also examined by the forensic medical examiner , who was briefed by the police that the applicant had been arrested after a struggle and that a taser gun had been used on him CARDINAL times . In his statement , the forensic medical examiner described CARDINAL physical injuries , including a fracture of the right index finger . He decided that the applicant was not fit for questioning and should be taken for treatment to hospital .

The applicant was taken to ORG . The hospital records mentioned that a taser had been used on the applicant during his arrest . The applicant was noted to have sustained facial injuries , namely tenderness around the left eye , cuts to both eyelids and a cut lip ; multiple bruising to the scalp ; and a fracture of the right index finger . He was given neurological tests . There is no mention in the hospital records of any complaint or injury relating to the use of a taser .

The applicant was taken back to the police station for questioning . His solicitor took photographs of the applicant ’s injuries , including red marks on the back of his neck , which she believed to have been caused by the taser .

Immediately after the arrest the area was sealed as a crime scene . At the time , since the police in GPE had only recently been issued with tasers as part of a pilot project , every use of a taser by ORG was investigated by ORG . The investigation in this case was called “ LOC ” . The officer from ORG who carried out the investigation examined the scene and established that there were no discharged taser darts and no ORG cameras operating . Enquiries were made of members of the public but no eye witnesses were identified other than the arresting officers , the applicant and the CARDINAL men arrested with him . The taser involved in the incident was examined ; the electronic download showed that it had been fired CARDINAL times . The reports of the forensic medical examiner who examined the arresting officers and the applicant were added to the file . Statements were taken from the arresting officers . On the advice of ORG , it was decided not to take a statement from the applicant while his trial for robbery was pending , but it was noted that the applicant had made no complaint about the degree of force used to arrest him .

ORG concluded :

“ The intelligence on which this operation was based has been confirmed , in that , a robbery took place and the assailants were armed . The tactical option of a ‘ hard ORG was adopted to minimise danger to officers and members of the public .

The officer deploying the ORG considered his tactical options , in accordance with his training , and took the decision to deploy the Taser to detain Mr PERSON . Mr PERSON was detained and a medical professional later assessed his injuries as minor .

Evidence from the officers involved in this incident corroborates the risk and chain of events . The download of the Taser confirms [ the police officer ’s ] account of the Taser deployment .

There has been no public complaint in this matter and there are no misconduct issues apparent . Officers’ actions were correct in a difficult , dangerous and fast time incident ” .

NORP The matter was referred to ORG ( “ ORG ” ) , which decided that it did not require any further investigation .

The applicant was examined by a consultant psychiatrist on DATE , on the instruction of his solicitors , with a view to establishing , for the purposes of the trial , the effects on the applicant ’s mental state of the force used on arrest , including his ability to be interviewed in the period immediately following his arrest . In his report dated DATE , the consultant psychiatrist found that the applicant ’s memory of the arrest was “ patchy ” and that since the arrest he had had problems with short - term memory recall and was suffering from post - traumatic stress caused by the violent nature of the arrest . The psychiatrist did not appear to question the applicant ’s account that a taser gun had been applied directly to the skin on the back of his neck , “ CARDINAL times ” . He stated that he was not an expert in tasers , but that he was an expert in the use of electro - convulsive therapy , where lower voltage was used in controlled circumstances . If a taser were used on the back of the neck CARDINAL times , this would be the equivalent of extreme electro - convulsive therapy , and it would cause the applicant to suffer “ the typical symptoms of inability to register and lay down new information in his memory during the period of trauma ” . The report concluded that :

“ Mr PERSON ’s ability to be interviewed

Mr PERSON was suffering from an acute confusional state at the time he was arrested because of the traumas he received to the brain and therefore anything he said during this period can not be deemed to be reliable in any way . ...

Mr PERSON ’s fitness to plead

... Since PERSON ca n’t remember details of the alleged offence he will not be able to challenge evidence produced by the Crown . Furthermore , because of his impaired short - term memory , he will find it difficult to follow the process of the court . ... ”

In DATE and DATE the applicant was seen by a specialist in forensic psychiatry , also instructed by the applicant ’s solicitors . He found the applicant to be suffering from a mild depressive illness , post - traumatic stress and loss of memory of his arrest . This specialist found that the applicant was able to stand trial . The applicant was seen by a different consultant psychiatrist in DATE , who agreed that he was fit to stand trial .

The applicant was tried for robbery and firearms offences in ORG . The hearing of the prosecution evidence lasted DATE , including the examination and cross - examination of the arresting officers regarding the degree of force used during the applicant ’s arrest . At the conclusion of the prosecution case , on DATE , the applicant decided to plead guilty . He was sentenced to CARDINAL years’ imprisonment and released from prison in DATE .

On DATE , DATE after the events in question , the applicant ’s solicitors wrote to the Commissioner of ORG , asking that the letter be treated as a “ formal notice of complaint ” about the use of excessive force during the arrest . The matter was referred to the ORG on DATE .

On DATE the ORG informed the applicant that it had decided to hold a “ managed investigation ” into the complaint , that is , an investigation carried out by officers from ORG under the supervision of the ORG . The terms of reference for the investigation were to investigate the use of force by officers during the applicant ’s arrest and to consider whether any criminal or misconduct offences arose . The terms of reference also indicated that a managed investigation was considered proportionate , given the period of time that had elapsed and the consequences which this would inevitably have for the effectiveness of any investigation .

The investigation was carried out by a Senior Investigation Officer and a PERSON from ORG . The officers involved in the arrest were interviewed under caution on DATE . They referred to their previous statements and declined to answer further questions . Statements were taken from the applicant and the CARDINAL men arrested with him . The applicant stated that he was unconscious throughout the arrest and could remember nothing . The CARDINAL co - accused were unable to identify the officers who had allegedly used a taser and kicked and punched him . The investigators concluded , in the report dated DATE :

“ CARDINAL It is clear from the available evidence that this was a fast moving , potentially life threatening and violent situation involving the use of firearms . In particular , it is evident from their own testimony that PERSON [ and the CARDINAL co - accused ] were armed with firearms and intent on and engaged in criminality of the most serious nature . It is also obvious by their personal use of body armour , that these criminals anticipated being present at the scene of a crime where there was a possibility that firearms would be discharged and where innocent life could be endangered .

CARDINAL The officers deployed to intercept this criminal gang were also aware of these facts and it must be highlighted that they clearly displayed significant and conspicuous courage in the manner in which they performed their duties on DATE .

CARDINAL It is perhaps disappointingly ironic that DATE these officers now have to answer for their actions under an accusation that they behaved in a disproportionately aggressive manner . Allegations levelled at them by others who have the luxury of hindsight , ‘ cold - light - of - day’ review and the benefit of not being at risk of being shot at . ”

The report concluded that there was no evidence to support any further criminal or disciplinary action against any officer involved in the arrest of the applicant . There was accordingly no case to answer .

The investigation was reviewed by an ORG Senior Investigator . He was satisfied that the investigation had met the terms of reference . In DATE the report was sent to ORG . They informed the applicant on DATE that they did not intend to bring any charges against the arresting officers . A copy of ORG was sent to him on DATE .

On DATE the ORG wrote to the applicant ’s solicitors , stating as follows :

“ I now turn to your letters of DATE , CARDINAL DATE and DATE , in which you raise many questions , some of which relate to specific issues relevant to an incident which occurred more that DATE before your client made his complaint . The apprehension and arrest of your client and his CARDINAL compatriots must be put into the context in which they occurred . It is a fact that PERSON and his compatriots engaged themselves in a criminal act involving theft of gold bullion and the use of weapons . It is also a fact that PERSON was wearing body armour which means he must have held the view that he needed to protect himself . That is not to say he was thus in a position to be unlawfully assaulted . The apprehension and arrest of armed suspects by armed police are by definition fast moving dynamic situations in which police officers have a duty to contain and negate any perceived threat . All identified threats must be negated as quickly as possible . In this case that was achieved .

The injuries suffered by PERSON are documented and are not in dispute . There is no evidence that he had any of his injuries before his arrest and therefore it is not in dispute that they were received as a result of his arrest . It is further not in dispute that a Taser was used as a method of gaining control of him . What is in dispute is the level of force used and therefore the lawfulness of that force .

With regard to evidence , in your letter of CARDINAL DATE you state that your client can recall little of the incident . CARDINAL police officers have provided statements about the incident ; QUANTITY of these statements are dated DATE and one does not bear a date . As at CARDINAL DATE , the date of the complaint , there was no prospect of obtaining any ORG evidence or independent witness accounts . The only other people known to be at the arrest scene were [ the applicant and his CARDINAL accomplices ] . Statements were taken from all CARDINAL . There are photographs of PERSON taken at the arrest scene and later in the police station by his then solicitor . This means that all the evidence that could reasonably have been gathered which is capable of being relevant to the matter in dispute has been obtained .

CARDINAL police officers were identified from the available evidence as being involved in the apprehension and arrest of PERSON . They were all served with LAW and were subsequently interviewed under caution . As noted above , all the officers exercised their right to silence and declined to answer any questions .

I note that neither [ of the CARDINAL co - accused ] has complained about the circumstances of their arrest and there is no evidence that they received any injuries . While this is in no way probative it does suggest that it was the conduct of PERSON which led him to be kicked and punched as admitted by officers .

As explained above , there is no further evidence which can be gathered which is capable of being relevant to the Terms of Reference , therefore any questions arising can only be answered by the available evidence . I agree that the injuries suffered by your client are not wholly explained by the accounts of the police officers . [ CARDINAL of the applicant ’s co - accused ] stated , inter alia , on DATE : ‘ I managed to turn my head to the right and could see he was surrounded by CARDINAL or CARDINAL people who were kicking him all over his body but they seemed to be concentrating on his top GPE

In relation to the use of ORG , whether or not it was used in accordance with procedure was not part of the terms of reference for this investigation . The use of Taser was the subject of the ORG report . However I can confirm that the use of Taser in ‘ drive stun’ mode is permissible in circumstances where , as here , the subject is wearing body armour .

Having regard to all that is stated above , I do not believe it is possible to conduct a causal analysis of each individual injury . It is clear that there must have been more blows landed by somebody or somebodies upon PERSON than is contained within the police ORG statements . Given the passage of time , the question of who inflicted those blows will never be known . It is evident from the ORG response to the interviews under caution that any attempts at further questioning would not take this matter further , and I do not think in any event that any further investigation into this matter would be meaningful or proportionate . In my view it is not possible to determine whether the force used was lawful or unlawful . ”

NORP In DATE the applicant informed the ORG that he intended to challenge by way of judicial review the decision to undertake a “ managed investigation ” . He contended that this decision breached his procedural rights under LAW .

The ORG responded in a letter dated DATE that they did not consider that the threshold of LAW had been reached , particularly in view of the facts that the applicant had taken part in a serious criminal offence and was armed and wearing body armour .

On DATE , the applicant applied for judicial review of the decisions , set out in the ORG ’s letters of DATE and DATE , that LAW was not engaged and that there was no need for an LAW investigation .

NORP The applicant was initially refused permission to apply for judicial review . He renewed his application , but it was again refused at a hearing on CARDINAL DATE . The Deputy High Court Judge found that the complaint about the nature of the ORG investigation was out - of - time , since the decision to hold a managed investigation had been communicated to the applicant on DATE . He also rejected the applicant ’s argument that the ORG had applied the wrong test in deciding whether the threshold of LAW had been reached . The Judge accepted the applicant ’s argument that the degree of injury caused was not the sole element and that intense , but momentary , pain from a taser could also be taken into account , together with a number of other factors , including the attributes of the complainant and the context in which the alleged ill - treatment took place . The Judge found , however , that the ORG properly took into account all the relevant circumstances , including the applicant ’s assertion that he did not resist arrest and the fact that a taser was used . He concluded :

“ I am of the clear view that this complaint comes far too late . I have already outlined the dates very briefly , and have indicated that the nature of the investigation , which by its very nature was a non - LAW investigation , was determined and notified to the complainant on DATE , and , as I have mentioned , a good deal of time , effort , resource , and thereby public money , went into pursuing that investigation over DATE .

It is not the right of a complainant to the ORG to sit , metaphorically , on his or her hands , see how things go , and , after time , trouble , and huge expense is incurred over a period of time ( in this case DATE ) , only then , if dissatisfied at the end , to raise the complaint which could have been raised at the beginning . I wish emphatically to reject the contrary submission that was made to me . In my view , there is no arguable case whatever for the massive extension of time which would be required to permit this application to proceed in respect of the substance of the first matter of which judicial review is sought , which was contained in the letter of DATE , and that on the grounds I have already mentioned . Article CARDINAL was not , in the circumstances , engaged , and in any event a complaint that Article CARDINAL might be engaged , because of the complainant ’s version that he was not in any way resisting arrest , was one which should have been raised , if ever , promptly after the CARDINAL DATE ” .

On DATE the applicant ’s Counsel advised that as follows :

“ In the judgment at paragraph CARDINAL on CARDINAL DATE , the learned judge emphatically concluded that :

‘ LAW was not , in the circumstances , engaged , and in any event a complaint that LAW might be engaged , because of the complainant ’s version that he was not in anyway resisting arrest , was one which should have been raised , if ever , promptly after the DATE CARDINAL.’

The application having been refused emphatically twice by ORG , I was unable to advise that there were greater that PERCENT prospects of success in renewing the application to ORG and therefore public funding was no longer available . My view is that it is very likely that ORG would have also rejected the application on the basis of delay .

I should note that in a very similar case ( PERSON ) where the mode of investigation was challenged at the start of the process and where a full hearing is due to take place in DATE , the ORG has now conceded that the use of a taser in similar circumstances did , indeed , amount to an arguable breach of LAW .

However , in Mr PERSON ’s case he is now in the situation where an investigation which did not comply with LAW concluded in DATE and he has now exhausted his domestic remedies in seeking to establish that his LAW have been breached . ”

The applicant did not seek to challenge the withdrawal of legal aid . Nor did he seek to renew his application for permission to apply for judicial review to ORG .

In DATE the applicant ’s solicitors instructed a consultant psychiatrist to prepare a medical report setting out the injury suffered by the applicant as a result of the arrest . The report , dated DATE , concluded that the applicant was suffering from post - traumatic stress disorder as a result of the force used by the police officers who arrested him .

On DATE ORG granted the applicant permission to commence a civil claim for damages for assault against the Commissioner of Police for the LOC in relation to the injuries caused by the use of a taser gun . Permission was however refused in relation to the applicant ’s other injuries .

The ORG was established by LAW DATE . Under LAW , the ORG is required , once a complaint is referred to it , to determine whether an investigation is required and , if so , in what form , having regard to the seriousness of the alleged misconduct and the public interest ( Schedule CARDINAL , paragraph CARDINAL ) .

The possible forms of investigation are ( a ) an internal ( local ) investigation by the police force in question ; ( b ) an investigation under the supervision of the ORG ; ( c ) an investigation under the management of the ORG ; ( d ) an investigation by the ORG . In a “ supervised investigation ” , the investigating police force proposes an investigating officer and terms of reference which must then be approved by the ORG . The ORG conducts a regular review of the investigation , but responsibility for maintaining the record of decisions and for conducting a timely investigation rests with the force . A “ managed investigation ” involves the ORG setting the terms of reference in consultation with the police force . The investigating officer is nominated by that force but must be approved by the ORG . Paragraph CARDINAL(CARDINAL ) of Schedule DATE Act provides that the person selected can be a member of the same police force as the investigated officers or of a different force . Once appointed , the investigator is under the direction and control of the ORG and responsibility for maintaining the record of decisions and ensuring a timely investigation is conducted rests with the ORG . While there is the possibility of an appeal to the ORG in connection with a local or a supervised investigation , there is no such right of appeal following an investigation carried out or managed by the ORG itself , although judicial review is available .

As regards the appropriate mode of investigation in cases raising issues under LAW and/or CARDINAL of the LAW , paragraph CARDINAL of the LAW in force during the time of the events in question stated as follows :

“ NORP Convention on Human Rights

Where the alleged conduct of a person serving with the police has resulted in death or serious injury Articles CARDINAL and CARDINAL of LAW may be engaged . If they are engaged , the ORG , as a public authority under LAW DATE , has an obligation to determine a form of investigation that is an effective independent investigation that does not have any hierarchical or institutional connection with those implicated in the events . It would only not have to do that where there has been an inquest that satisfied LAW . An independent investigation into a death conducted by the ORG itself would satisfy the requirement of independence under LAW . An ORG managed investigation into a death involving the police would satisfy the requirement of independence under LAW provided that it was conducted by an external police force . Not all death or serious injuries that occur following contact with the police will engage LAW . For example where the death was obviously from natural causes or the police contact was sufficiently remote from the time of the death or serious injury . ”

The facts in ORG [ DATE ] EWHC CARDINAL ( Admin ) were as follows . In TIME of DATE The claimant was driving home with a friend when their car was stopped by the police . The officers were involved in a pre - planned operation , following information that the occupants of the car had a firearm . Officers stated that the claimant was non - compliant and would not show his hands and appeared to be trying to get something from his waist . The claimant denied this and alleged that the officers used excessive force by using a taser on him CARDINAL times . Following his arrest he was taken to hospital where he was found to have injuries to his left lower jaw , requiring CARDINAL stitches ; a bruised and swollen left eye ; skin removed down the right side of face ; cuts to arms , wrists and hands ; a swollen wrist ; and taser injuries . No charges were brought against him . He complained to the police that excessive force had been used during the arrest . The police referred the matter to the ORG . The ORG initially took the view that the severity of the injuries did not meet the threshold of LAW and decided that the complaint should be investigated locally . The claimant applied for judicial review of that decision . Shortly before the hearing , the ORG amended its defence to accept that there was an arguable case that the claimant had suffered ill - treatment contrary to LAW . However , the ORG argued that the investigation required by LAW could be fulfilled by a number of measures taken together : a local investigation ; an appeal to the ORG if the complainant was dissatisfied with the outcome of the local inquiry ; the possibility of criminal proceedings and the possibility of civil proceedings .

In his judgment of CARDINAL DATE , PERSON commented as follows on the use of tasers by the police :

“ CARDINAL . The Taser is a pistol - like device which shoots CARDINAL probes from an attached cartridge . Wires are attached to the probes . When the trigger is pulled an electric charge of QUANTITY is passed through the wires and , if the probes have become attached to the subject , through his body . The electric pulse lasts for TIME , or longer if the trigger is held down . The ORG can also be operated by holding it against the body of the subject . This is known as the ‘ drive stun’ mode . It is the method which the Claimant alleges was applied to him CARDINAL times .

The electric charge can cause intense pain . It also ( and this is said to be its principal attraction for the police ) incapacitates its subject . The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body . This lasts as long as the charge is applied . It stops when the charge stops , although the person concerned may be dazed and confused for a while longer . There may also be small burn marks on the skin nearest to the probes .

The introduction of Tasers goes back to ORG in DATE ( ‘ A New Beginning : Policing in Northern Ireland’ ) which had called for substantial investment in research to find an acceptable , effective and less potentially lethal alternative to the plastic baton round . Tasers were developed in GPE . They were first used in the GPE in DATE . Originally , their use was confined to firearms officers . A somewhat wider use of them is allowed now by specially trained units ( at least in some police forces ) . It was firearms officers who used them on this occasion , but the Claimant relies on the potentially wider use of Tasers as CARDINAL reason why this incident merits particularly careful investigation .

The use of Tasers is closely monitored . Every incident in which a ORG is deployed ( whether discharged or not ) is reported to the ORG ( ‘ ACPO’ ) and ORG . A panel of independent medical experts reviews periodically the use of Tasers . They comment that no deaths or serious injuries attributed to ORG use have occurred since the introduction of the device in DATE . They assess the risk of death or serious injury from the use of Tasers within ORG as very low . It is not CARDINAL as there have been CARDINAL reported incidents in the GPE of subjects who sustained fatal head injuries as a result of ORG - induced falls . ACPO guidance is that PERSON should only be used where officers are facing violence or threats of violence of such severity that they need to use force to protect the public , themselves or the subject .

The ORG ’s approach to the use of PERSON has varied over time . In DATE when they were first introduced , the ORG ’s predecessor , ORG , required the police to refer to it any incident in which a Taser had been discharged . The ORG supervised the first few investigations into Taser use because of the considerable public interest , but since that time the vast majority of matters have been sent back to the police force concerned for local investigation . In DATE , the ORG changed the criteria for referral . They were brought into line with referrals where firearms were discharged i.e. referral to the ORG was required whenever their use : ( i ) resulted in death or serious injury ; ( ii ) caused danger to the public ; or ( iii ) revealed failings in command . Police forces could , of course , voluntarily refer other uses of ORG . In DATE , the ORG responded to the pilot project to allow specially trained units ( and not just firearms officers ) to use Tasers . In the forces which participated in the pilot , the ORG required all public complaints concerning the use of Tasers to be referred to it . In DATE the extension on use of Tasers to specially trained units was applied nationally . In consequence , from DATE , the ORG requires any complaints involving the use of Tasers to be referred to it . ”

PERSON found that , on the facts of the case , a procedural duty arose under LAW , for the following reasons :

“ CARDINAL . ... I have to say that I do not regard the experiences of the Claimant as anywhere near the borderline that is perhaps represented by minor bruising or scratches . It is not disputed that Tasering can cause intense pain ( albeit briefly ) . The photographs of the Claimant show that he suffered significant cuts , not least to his face and head . Of course , if the police used no more than reasonable force to effect his arrest and/or to deal with a threat to public safety , there would be no breach of Article CARDINAL , but if his account is correct and he was compliant and there was no reasonable basis to suspect that he had immediate access to a weapon , subjecting him to treatment of that kind was a serious matter . ”

PERSON commented with regard to the resource implications of requiring the ORG to carry out an investigation in all cases involving a arguable claim that excessive force had been used by the police :

“ CARDINAL . I was not provided with an estimate of how much an independent investigation by the ORG would cost in this case . I am prepared to assume that it will be less than the [ the cost of an ad hoc public inquiry ] , but the difference is likely to be CARDINAL of degree . A managed investigation ( which , as I have said was the fall back alternative proposed by the Claimant ) may be somewhat cheaper , but , once again there were no precise figures . Independent investigations ( and I assume the ORG ’s costs in relation to a managed investigation ) are paid for out of the ORG ’s budget , whereas local investigations are funded locally . More significantly , there are a very large number of complaints about the use of excessive force by the police when effecting an arrest . DATE and DATE , this was a feature of CARDINAL conduct or complaint cases referred to the Commission . Currently very few of these are investigated by the ORG itself , but if the threshold for a breach of LAW is now as the Commission understands it to be and if the present claim is upheld then a very significant proportion of those complaints would have to be investigated by the ORG itself . That would put an impossible strain on the ORG ’s budget . ”

Having reviewed the relevant principles relating to the procedural obligation under LAW , PERSON dismissed the claim , as follows :

“ DATE . It is accepted that the Claimant suffered significant pain and injuries which , if not justified in the circumstances , would amount to the infliction of inhuman or degrading treatment contrary to LAW . He is entitled to have that claim effectively investigated . To be effective , the investigation must be independent . It is also accepted that the local investigation currently being carried out by ORG will not be independent . However , if the investigation were to lead to the prosecution of the officers concerned , the criminal trial would be ( or , at least , could be ) the effective investigation which LAW . Furthermore , if the Claimant ’s mother ( who made the complaint to the police about his treatment ) is dissatisfied with the information which is provided to her , with the findings of the local investigation or with its outcome , she can appeal to the ORG . That is a route which is regularly used by complainants and with some success . It increases the possibility that there will be a prosecution . It also allows for the chance that any deficiency in the local investigation can be remedied . All of this means that it can not be said at this stage that the ORG ’s direction that her complaint should be examined locally will inevitably breach the Claimant ’s right to an effective investigation . I would not have held that the possibility of civil proceedings by the Claimant was a means of providing the investigation required by LAW . The NORP authorities reject the possibility and comments to the contrary in the domestic authorities were not necessary for the decisions in those cases . However , whether I am right or wrong about the relevance of the possibility of civil proceedings is beside the point . The other reasons which I have given are sufficient for my conclusion that this application must be dismissed . ”

Leave was granted to the claimant to appeal against this decision to ORG but it does not appear that the appeal was pursued to judgment .


Remainder inadmissible;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;Effie Papadopoulou;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

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

The applicant was , at the material time , a senior officer in ORG in which he served until retirement , with an interruption of DATE and DATE under the conditions set out below .

On an unspecified date in DATE , criminal proceedings were initiated against CARDINAL of his subordinate police officers in relation to the alleged ill - treatment and torture of suspects . The prosecuting authorities failed to prove a prima facie case against them , and the officers were accordingly acquitted on DATE . The court considered that the testimony of the principal prosecution witnesses - the victim and CARDINAL of his relatives who had been arrested with him- “ had been so obviously unreliable that no reasonable court could rely on it and convict the accused ” . It also considered that the prosecution had committed a series of improprieties which had tainted the evidence to such an extent that the case against the accused should be discontinued in the interests of the proper administration of justice .

Subsequently , on DATE , ORG appointed an ORG ( ORG ) to examine this matter further . The ORG ’s findings were delivered on DATE . It found that certain police officers , including the afore - mentioned , had engaged in torture practices against certain suspects in order to obtain confessions . On the basis of the ORG ’s findings , on DATE , ORG terminated the employment of the CARDINAL police officers as well as that of the applicant for the protection of public interest . The applicant was dismissed for the negligent exercise of his duties , since it was found that certain police officers under his control had engaged in such practices . CARDINAL other junior officers who were also found to have been involved in acts of torture and ill - treatment of prisoners were not dismissed . The applicant ’s dismissal was widely reported in the national press .

The applicant challenged the legality of the said decision before ORG exercising its administrative judicial review jurisdiction .

ORG delivered its judgment in a plenary session on DATE . It unanimously annulled the decision of ORG which was found to have violated the applicant ’s constitutional right to be presumed innocent . It further found that he had effectively been dismissed without trial or disciplinary proceedings and , as such , he was deprived of any opportunity to defend himself . Moreover , the decision of ORG was found to be ultra vires .

On DATE , the applicant requested the reinstatement to his former post . On DATE he returned to duty .

Subsequently , the applicant brought an action under LAW before ORG of GPE requesting fair and equitable compensation .

Judgment was delivered on DATE by ORG which refused the applicant ’s request for exemplary damages . Concerning his request for payment of the difference in his DATE salary , corresponding to the period in which his service had been interrupted , the court observed that he had received a higher amount upon his dismissal than the requested difference in salaries . This amount had been held by him throughout the period following his return to duty and until his retirement . Then this amount had been deducted from the amount to which he was entitled to by virtue of his retirement and the difference was paid to him . The request was accordingly refused .

NORP However , CARDINAL , CARDINAL Cypriot pounds ( ORG ) , plus MONEY interest as from DATE that the action was lodged , was awarded in compensation for moral damage . The court pointed out that , as observed by ORG in the case of PERSON v. The Republic ( DATE ) CARDINAL C.L.R. CARDINAL , an award for damages under LAW was not subject to the common - law rule for quantifying damages aiming at restitutio in integrum , but was governed by the principles of equity . It considered that the applicant had suffered injury to his psychological and moral integrity which was directly caused by the annulled decision . In particular , the following was noted :

“ Within this framework of criteria ( established in the domestic case - law ) , I do not see any good reason why the court in a case similar to the present one , where , by the exclusive behaviour of the administration ( ORG ) the plaintiffs who , had been expelled from their positions with characterisations that had definitely affected them psychologically as they themselves had maintained , should not be entitled to certain compensation for that injury to their psychological integrity . I consider such injury as damage emanating directly from the annulled administrative decision ” .

NORP Moreover , it was acknowledged that the decision had serious defamatory effects for him . As such , the relevant award was seen as required by equity to provide redress the unlawful act of the administration .

The applicant lodged an appeal with ORG and contended that the damages award was manifestly insufficient . The Attorney - General filed a cross - appeal by which the annulment of the first - instance district court judgment was requested .

“ Such moral damage did not constitute a direct consequence of the annulled administrative act and that , therefore , such an award was not covered by the provisions of LAW .

Article CARDINAL of the LAW of GPE provides as follows :

“ CARDINAL . ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person .

Such a recourse may be made by a person whose any existing legitimate interest , which he has either as a person or by virtue of being a member of a ORG , is adversely and directly affected by such decision or act or omission .

Such a recourse shall be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse .

Upon such a recourse the ORG may , by its decision-

( a ) confirm , either in whole or in part , such decision or act or omission ; or

( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or

( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed .

Any decision given under paragraph CARDINAL of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned .

Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared there under that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant . ”

In PERSON v. The Republic ( CARDINAL ) CARDINAL C.L.R. CARDINAL at p. CARDINAL , Mr Justice PERSON , as he then was , observed the following :

“ The cause of action conferred by LAW , is a cause sui generis , in the sense that it bears no relationship to a common law action for damages , or , in fact , to any other cause of action known to the law ( PERSON v. The Attorney - General ( DATE ) CARDINAL C.L.R. CARDINAL ) . It is a right to be evaluated in the context of Article CARDINAL and the system of review of administrative action created thereby . It is ancillary to judicial review , as a measure necessary for its effectiveness . Primarily it entitles the injured party to recover damage not remediable by proper administrative action . If the proper administrative action is not taken , the remedy is to go to the administrative court again . If notwithstanding this step the injured party is left to shoulder damages , then he has a right to recover them from the Republic . The right to damages under Article CARDINAL is distinctly independent from any other cause of action , as ORG held in Attorney - General v. PERSON and another ( DATE ) CARDINAL C.L.R. CARDINAL . Not only its juridical basis but also the manner of quantifying damages is different from a common law action . ORG emphasised the equitable character of the relief as well as the damages recoverable , stressing that they are not strictly compensatory . Consequently , it is legitimate for the ORG to have regard , not only to the extent of the material damage suffered , but also to the conduct of the parties and the degree to which the successful party contributed to the production of the wrongful administrative act . In the case of ORG , supra , ORG derived guidance , inter alia , from NORP case law , establishing that the conduct of the parties and their blameworthiness , if any , is of crucial importance to the determination of the quantum of the damages . ”


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Ms Anke Julia Stock of ORG in GPE , as well as by Mr PERSON , Mr PERSON and PERSON , lawyers practising in GPE .

On DATE the applicant , who is a journalist , together with PERSON , distributed a leaflet concerning the conscientious objector PERSON , outside ORG . The applicant also handed the leaflet to the public prosecutor at ORG along with a petition requesting that he be prosecuted for having committed a crime . The leaflet , entitled “ Freedom to think - an initiative against the crime of thought ” contained the press release issued by O. M. U on DATE . The latter had been previously convicted and sentenced on account of this press release . The relevant parts of the leaflet are as follows :

Preface and Epilogue :

“ ... For the purpose of defending the free expression of every kind of thought , we who have signed as publishers , convey this ' convicted ' text to the people , regardless of its contents and the question whether or not we share its contents , even though some of us do not agree with some lines in it ... '

The press release of O. M. U :

“ Good morning , DATE 's press conference is not organised by ORG . The responsibility for this conference rests exclusively with me . As you know , the case , which was brought before ORG where I was allegedly accused of committing the crime of ' causing unwillingness of the people to do military service ' , was concluded on CARDINAL DATE .

The army , unable to deal with us through judicial methods , think that they can draw the opponents of war away from the public view . First of all , I am not a deserter ; I am a ' conscientious objector ' . I neither intend to do military service nor desert . There is no reason to desert , because I defend the principle that people should exercise their right not to do military service without having to go into hiding .

As to the papers given by ORG ... I am going to burn them right now before your eyes ...

I am not a soldier and I will never be . Of course , I am aware that I will be summoned for military service , but until I am summoned , how many more days that will be , there will be no changes to my life style . They can find me here to take me by force . But I will resist to the end in the barracks , and I am underlining that I will refuse to do military service in any shape or fashion . ”

On DATE the public prosecutor at ORG took the statement of the applicant . In his statement the applicant reiterated his petition which he had previously submitted to the prosecutor . He stated that by publishing and distributing the above - mentioned leaflet he had committed the same offence of which ORG had been convicted . He contended that he agreed with the contents of the leaflet . He further pointed out that there were judgments of ORG which referred to conscientious objectors . He claimed that the leaflet was not intended to dissuade people from doing military service or to incite them to desert . He further stated that in the GPE conscientious objectors did not do their military service , but were given other jobs . He commented that maybe in the future the same will also be true for GPE . He concluded that his aim was to obtain the abolition of compulsory military service in GPE .

On DATE the military public prosecutor at ORG in GPE filed a bill of indictment , accusing the applicant of discouraging people from performing military service . He requested that the applicant be convicted and sentenced under LAW and LAW of LAW .

On an unspecified date , the criminal proceedings against the applicant commenced before the General Staff Military Court in GPE . In the proceedings , the applicant reiterated his statement to the public prosecutor at ORG . The applicant submitted that he was a defender of freedom of expression and challenged the independence and impartiality of the court .

On DATE the court convicted the applicant as charged and sentenced him to DATE imprisonment and to a fine of CARDINAL NORP Liras ( CARDINAL ) .

In its reasoning , the court contended that it had competence to deal with the case pursuant to the LAW and domestic law provisions . It also pointed out that there was no ruling of ORG which concluded that military courts were extraordinary courts .

As to the merits of the case , the court considered that by distributing the leaflet containing the press release which led to O. M. U 's conviction and by presenting the leaflet to the public prosecutor 's office at ORG and asking the latter to take legal action , the applicant 's actions were deliberate and that he had committed the offence knowingly and willingly . The court , relying on Articles CARDINAL and CARDINAL of the LAW , LAW , affirmed that freedom of expression and dissemination of ideas was not absolute . Citing relevant articles of LAW , the court reasoned that the provisions under which the applicant was charged pursued the aim of eliminating threats to the unity of the country , national security and sovereignty . The court observed that LAW was in accordance with international law and that the applicant 's case fell within the scope of LAW .

On DATE the applicant appealed to ORG . In his appeal , the applicant , relying on Articles CARDINAL and CARDINAL of LAW , contended that he should not have been tried by a military court and that the act which he had committed could not be considered an offence .

On DATE ORG upheld the decision of ORG .

In respect of the applicant 's submission that he should not have been tried by a military court , ORG , referring to domestic law and to the jurisprudence of ORG , ruled that the military courts had jurisdiction and competence to try the applicant .

As to the merits , the court , after having assessed the contents of the leaflet , concluded that the judgment given by ORG was in accordance with the law .

On DATE the applicant left GPE in order to avoid imprisonment . He claims that he lost his job at a television station , ORG , because of pressure from the army . The applicant continues to write as a columnist for a NORP newspaper . He submits that his earnings as a columnist are significantly less than what he had earned previously with ORG . The applicant received compensation from ORG and did not bring any civil proceedings in respect of his loss of employment .

The applicant alleges that due to his conviction he can not return to GPE without risking imprisonment and that his family relations have suffered as a result .

“ Whoever , in circumstances other than those indicated in the foregoing ORG , publishes editorials to incite people to violate the laws of GPE or endangers the security of the country , or issues publications or makes suggestions in order to dissuade persons from performing military service or gives speeches to this effect at public meetings or in places where people have gathered , shall be liable to imprisonment for a period of DATE and to a heavy fine of MONEY . ”

“ Whoever commits the offences described in LAW to CARDINAL or the offence described in LAW dissuading persons from performing military service by issuing publications or making suggestions or giving speeches to that effect shall be liable to be punished in accordance with the aforementioned Articles for the crime of threatening national security . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the ORG by Mr O. ORG , a lawyer practising in GPE .

summarised as follows .

The applicant is a dentist and runs a private dental practice in ORG . As such , under LAW ( Law no . PERSON ) , as amended ( PERSON o zdravotnej starostlivosti ) , she is under an obligation to provide health care .

In DATE and DATE the applicant provided dental care to patients who were insured by a private insurer P. Under section CARDINAL ( CARDINAL ) of ORG Law no . PERSON ) , as amended ( PERSON o zdravotnom poistení ) , PERSON was obliged to pay the applicant the costs of this care upon request within DATE , latepayment interest being set pursuant to section CARDINAL ( CARDINAL ) of that Act at PERCENT per day . P. has however failed to make any payment .

On DATE ORG withdrew ORG 's licence to provide health insurance as it did not have the prescribed number of insurance policies . Under section CARDINAL ( CARDINAL ) of ORG decided that ORG 's insurance policies would be assigned to ORG ( GPE zdravotná poisťovňa ) . ORG noted that pursuant to LAW ( CARDINAL ) of that LAW guaranteed ORG solvency and that , in the circumstances , the latter was the most appropriate body to secure the policyholders ' constitutional right to healthcare . ORG ruled , lastly , that pursuant to section CARDINAL ( CARDINAL ) of LAW liabilities to private healthcare establishments and its receivables ( insurance premiums and latepayment penalties ) were transferred to ORG . The decision became final and binding on DATE .

On DATE , at ORG request for a review under a special procedure , ORG upheld the decision of DATE . It observed that under LAW ( CARDINAL ) of ORG the withdrawal of P. 's licence meant that the winding up and liquidation proceedings had begun automatically , by operation of law . The liquidator 's powers were confined to liquidating ORG 's assets . The exact procedure was governed by the relevant provisions of LAW . Should the liquidator discover that ORG 's assets did not suffice to satisfy its creditors , he or she was required to seek an insolvency order . ORG held that ORG could by no means be considered to be P. 's general legal successor . The transfer of ORG 's liabilities and claims to ORG was governed by special legal provisions contained in section CARDINAL ( CARDINAL ) of ORG . Pursuant to that provision , the liabilities of an insurer on a winding - up passed to the designated insurer only to the extent that they could not be satisfied from the assets of the insurer that was being woundup . In the present case it had not yet been established by the liquidator that ORG 's assets were insufficient to satisfy its creditors . According to ORG , therefore , PERSON 's liabilities could not be considered as having been assumed by ORG for the time being .

On DATE PERSON 's liquidator filed a petition with ORG ( PERSON súd ) seeking an insolvency order against ORG made the order on DATE and it became final and binding on DATE . Under LAW the declaration of insolvency automatically stayed the liquidation proceedings . The insolvency proceedings are still pending .

On DATE the applicant unsuccessfully lodged a demand with ORG for payment of the costs of the dental treatment .

On DATE amendment no . PERSON . to ORG entered into force . It added inter alia a new paragraph DATE of the Act . It stipulated that where the outstanding liabilities of an insurance company in liquidation were passed on to a designated insurer , like ORG in the present case , they were to be settled within DATE from the date the liquidation accounts were approved or an insolvency order made . Such liabilities would to be settled from the liquidated insurance company 's assets , from the ORG budget or from other sources designated by the ORG .

On DATE the applicant , who was represented by a lawyer , brought a civil action against ORG in the Bratislava V ORG ( ORG súd ) . She sought an order for the payment of CARDINAL NORP korunas ( SKK ) for the above dental care plus latepayment interest . She submitted that the newly adopted paragraph CARDINAL of section CARDINAL of ORG was not applicable to her case as P. 's debt towards her had passed to the defendant prior to the entry into force of amendment no . CARDINAL . In support of that argument she maintained that in DATE the defendant had settled PERCENT of P. 's outstanding debts to Stateowned pharmacies . If PERSON 's outstanding debts had not been assumed by ORG , there would have been no valid legal basis for such settlement . In its observations in defence , the defendant acknowledged the PERCENT settlement but maintained that it had been financed from extrabudgetary resources which had not been intended for it or for the liquidator .

On DATE , on a protest by ORG , the ORG quashed the ruling in its decision of DATE that ORG 's liabilities towards private healthcare establishments had been transferred to ORG . The remainder of the decision of DATE remained unaffected .

On DATE ORG dismissed the action after hearing the parties and examining complex documentary evidence . ORG observed that although PERSON had been wound up and subsequently declared insolvent , it had not been struck off the business register and had retained its legal personality . The transfer of its liabilities to ORG was not automatic . As the insolvency and liquidation proceedings had not yet been completed , it could not be determined whether PERSON had any liabilities that could not be settled from its assets . It therefore could not be said whether DATE and if so which – of P. 's liabilities had been transferred to the defendant . Therefore , at the material time , there had been no cause of action against ORG . Moreover , and in any event , the action was also premature in that , even assuming that ORG 's debt to the applicant had passed on to the defendant , the timelimit under section CARDINAL ( CARDINAL ) of ORG for its settlement had not yet expired . As to the temporal application of LAW , ORG observed that amendment no . CARDINAL contained no transitional provisions . It concluded that LAW was thus to be applied as worded on DATE of the judgment . ORG dismissed the applicant 's argument based on the partial settlement of ORG 's debts towards ORG owned pharmacies observing that the settlement had been arranged by ORG 's liquidator and financed from nonbudgetary resources , the defendant merely having played the role of an administrator in the transaction . ORG observed , lastly , that DATE period laid down by amendment no . CARDINAL had been adopted in order to enable the ORG to raise the financial resources necessary to settle the liabilities of insolvent private health insurers .

On DATE the applicant , assisted by a lawyer , appealed against the judgment of DATE . She reiterated the arguments she had made in ORG . In its observations in reply , ORG pointed out that P. 's insolvency and the liquidation of its assets had not affected its legal existence , and it still had assets that needed to be realised and the proceeds distributed . Only then could it be established which , if any , of P. 's liabilities could not be settled and would consequently pass to ORG . Furthermore , only at that point would it become clear what additional funds would have to be raised in order to cover the transferred liabilities , a process for which amendment no . CARDINAL/CARDINAL had afforded a period of DATE .

On DATE ORG upheld the judgment of DATE . It noted that the order declaring P. insolvent became effective on DATE . Pursuant to section CARDINAL ( CARDINAL ) of ORG any of P. 's liabilities which had been taken over by ORG were not payable until DATE after the insolvency order , that is to say until DATE . Thus , above all , the action was premature .

On DATE amendment no . PERSON . to ORG entered into force . It inter alia modified the wording of section CARDINAL ( CARDINAL ) by providing that if the amounts obtained by realising the liquidated insurance company 's assets did not suffice to cover its liabilities in full , only that portion of the outstanding liabilities that represented principal ( exclusive of any penalties for late payment ) was payable .

In DATE the applicant , who was represented by a lawyer , lodged a complaint with ORG ( Ústavný súd ) under LAW of the LAW . She formally directed her complaint against ORG and ORG and objected that the decision to apply LAW ( CARDINAL ) of ORG , as amended by amendment no . CARDINAL , and to dismiss her the action she had brought on DATE had infringed her right to equality of ownership ( LAW of LAW ( Listina základných práv a slobôd ) ) , her right to equality ( LAW and CARDINAL of the LAW ) , her freedom of choice of occupation and business ( LAW ) and her property rights ( LAW . She also maintained that the alleged violations constituted a breach of the principle of the rule of law enshrined in LAW . She asserted that amendment no . MONEY had retrospectively and substantially changed the conditions under which she had entered the entrepreneurial environment and had disproportionately and without any acceptable justification postponed the settlement of her claim .

On DATE ORG declared the complaint inadmissible . Observing that the complaint was formally directed against ORG and ORG , it found that there was no connection between those courts ' decisions , which were in conformity with the relevant laws , and the alleged violation of the applicant 's right to equality , equality of ownership and freedom of choice of occupation and business . ORG also observed that the right to freedom of choice of business did not afford any protection from entrepreneurial risk , a part of which was the risk that one 's business partners may became insolvent . That part of the complaint was therefore manifestly ill - founded . In so far as the applicant complained of a violation of her property rights , ORG observed that the task of protecting those rights had been entrusted to the ordinary courts . It therefore found that in accordance with the subsidiarity principle it had no jurisdiction to entertain that part of the applicant 's complaint .


Violation of Art. 10;Non-pecuniary damage - financial award

The applicant was born in born in DATE . She is a choreographer and lives in GPE , GPE .

On DATE at TIME , at that time the Deputy Speaker of the PERSON , made a formal notification of the commission of an offence ( zawiadomienie o popełnieniu przestępstwa ) to ORG , ORG , alleging that the applicant and her husband had kidnapped his DATE daughter , PERSON The applicant submitted that the allegation was false as PERSON had in fact run away from home and had only been accompanied by the applicant ’s son who had been her boyfriend for a long time . PERSON had previously run away from home on several occasions because of conflicts with her parents . Prosecutor PERSON , who – according to the applicant – was a friend of PERSON PERSON , immediately instructed the ORG Deputy Regional Prosecutor E.C. to take charge of the case .

On DATE , i.e. DATE , the prosecutor PERSON signed a warrant authorising the search of the applicant ’s flat . The warrant was intended to search the flat for GPE and for drugs . On DATE prosecutor PERSON signed an order allowing the tapping of the applicant ’s telephone .

On DATE at TIME the applicant ’s husband went to his cottage situated in the suburbs of FAC . He was arrested by police officers who then searched the cottage . Prosecutor PERSON and Mr PERSON were present at the scene . Subsequently , the applicant ’s husband was taken to ORG , where he was detained overnight .

On DATE at TIME police officers searched the applicant ’s flat in her presence . However , they did not find either GPE or drugs . The police officers advised the applicant that her husband had been detained and served her with a summons to report on DATE at TIME to FAC for questioning .

In TIME of CARDINAL DATE the applicant ’s husband was taken handcuffed to the LOC of the regional prosecution service . He was questioned by prosecutors ORG and GPE .. Mr PERSON was present during the questioning . The applicant ’s husband was released after the questioning .

The applicant failed to report for questioning on DATE . She submitted to the police a letter explaining that she had to care for her daughter who was ill . Subsequently , the applicant failed to report for questioning on CARDINAL and DATE . On CARDINAL and DATE police officers tried to serve a summons on the applicant , but could not find her at her place of residence .

On DATE prosecutor PERSON charged the applicant with kidnapping and signed an arrest warrant for her . Prosecutor PERSON also charged the applicant ’s son with kidnapping .

On DATE the applicant was taken into custody . She was detained in the FAC prison hospital , apparently in the psychiatric ward .

On DATE and DATE the applicant was questioned by prosecutor ORG She was also confronted with PERSON .

In TIME DATE the applicant was released from detention .

On DATE the applicant applied for a transfer of her case to a prosecutor who worked outside the FAC region . On DATE ORG advised her that the application had been allowed and that her case had been taken over by the ORG R.G.

On DATE prosecutor ORG decided to discontinue the criminal proceedings against the applicant and her son . He considered that they had not kidnapped PERSON The prosecutor referred to the statement taken from GPE who testified that it had been her decision to run away from home and that she had asked the applicant ’s son to accompany her .

Mr PERSON and his wife lodged appeals against the decision to discontinue the criminal proceedings against the applicant and her son , but on CARDINAL DATE prosecutor PERSON of ORG dismissed them . The prosecutor considered that the allegations of kidnapping were groundless .

The case concerning the alleged kidnapping of GPE received wide coverage in the media .

In DATE the applicant stood as an independent candidate in the parliamentary elections .

On DATE she published an article in the DATE newspaper “ ORG ” . DATE of the article , which was published in a section entitled “ Preelection Pranks ” , read as follows :

“ WHY ?

I am an independent candidate for the ORG , not connected to any ‘ ORG , relations or obligations . The fact that I am described in the press and television as ‘ a mother - in - law of CARDINAL K.’ probably shows that the authors can not mention names since they use such a euphemism . It is not my achievement and it was not a result of my efforts that we have become a family with PERSON . It can be explained by my son and his wife , if it is important ...

In order to explain the origin of the idea of standing in the elections to the ORG I have to go back to the events which took place DATE . At that time , I learned at my cost what the abuse of power meant ! The Deputy Speaker of the PERSON at that time , directed by emotions and personal animosities , made the persons responsible for respecting the law – ORG and his Deputy , and even the Minister of Justice – breach the law because of ‘ the solidarity of colleagues’ . I was arrested , detained in a psychiatric cell , my flat was provocatively searched for ‘ drugs’ , my telephone calls were tapped , a car damaged . After such compromising events , a politician of such a calibre in the LOC would have had to leave . But here he still felt good DATE and the PERSON decided not to dismiss him ! I can imagine what sort of arrangements must have existed in the PERSON to make such a decision ! I was so shocked by this that I was ready to go abroad as nothing could be changed . A turning point came when the President dissolved the ORG . People started to telephone and write letters asking me to stand in the elections . They were saying that the events which had taken place DATE showed that I could fight . I am convinced that I am not the only one touched by the breaches of the law committed by the representatives of ‘ the new democracy’ . However , the law is the same for everybody , regardless of whether somebody is in power or is ‘ an ordinary man’ . This fundamental rule of democracy must be respected ! ”

DATE of the article described the applicant ’s ideas about working in the ORG .

On DATE the applicant published in the same weekly the following article :

“ ABOUT ME

DATE of my professional life were dedicated to article As a dancer and a choreographer I worked with numerous theatres and cultural centres – both in GPE ( among others the Łódź Grand Theatre ) , and abroad . I also worked as a pedagogue with children and young people . In DATE I started to run a private business and presently I am a co - owner of a company ‘ AVATAR’ . I have CARDINAL children : a CARDINAL old son ... and a CARDINAL old daughter ... , my husband DATE is an actor . I did not belong to any political party . I did not participate actively in politics ...

In DATE events took place which changed my attitude to the world . The abuse of authority , which I experienced , has made it impossible for me to stand idly on the sideline and watch people who should be the guardians of the law , breaking it ruthlessly for the sake of their private interests . After all , precisely that was done to me by the former Deputy Speaker of the PERSON , the former Minister of ORG , the former ORG and his former deputy .

It is not by chance that DATE for some malicious people it is not important that I am an independent candidate for the ORG but only that I can be called the mother - in - law of PERSON [ in bold in original ] . They are not interested in the fact that DATE I was arrested groundlessly and imprisoned – purposely ! DATE in a psychiatric cell , that my home was searched on the pretext of ‘ looking for drugs’ , that after my release I was followed , my telephone calls were tapped and my car damaged , causing me constant mental pressure ! All this happened in a country in which a westernstyle democracy had just set in !

DATE the Vice Minister of ORG sees ‘ clear pressure brought by the Deputy Speaker PERSON on the ORG prosecution service’ , and there are criminal proceedings pending against its former employees .

I am a strong person . I have endured ... However , I do not want any other innocent person to suffer similar harassment . There must be justice and equality before the law – regardless of whether somebody is ‘ the man in the ORG or the Deputy Speaker of the PERSON ! I know that I can fight and win ! I have remained independent ! That is why I have decided to enter the political arena ! [ in bold in original ] . ”

NORP In election broadcasts on the FAC local radio station on CARDINAL , DATE and DATE the applicant made the following statement :

“ A turning - point came DATE . You remember that story , it was well - known in the whole of GPE , although I did not cause it . At that time , I realised to my cost what the abuse of power meant . The Deputy Speaker of the PERSON at that time , directed by emotions , made ORG , his Deputy , and even the Minister of ORG breach the law because of the solidarity of colleagues . I was arrested , detained in a psychiatric cell , my flat was provocatively searched for drugs , my telephone calls were tapped , a car damaged . All this because the daughter of Mister Deputy Speaker decided to spend holidays with my son without her daddy ’s permission . Until then I had thought that such behaviour had been possible only in the NORP era . ”

NORP In election broadcasts on the FAC local television station on CARDINAL and DATE the applicant made the following statement :

“ The abuse of authority , which I experienced , has made it impossible for me to stand on the sideline and idly watch people , who should be the guardians of the law , breaking it ruthlessly for the sake of their private interests . Precisely that was done to me by the former Deputy Speaker of the PERSON , the former ORG and his deputy . DATE , there are criminal proceedings pending against them . I am a strong , enduring person , however I do not want any other innocent person to suffer similar harassment . ”

On DATE Mr PERSON lodged with ORG a private bill of indictment . He charged the applicant with CARDINAL counts of defamation ( zniesławienie ) under LAW . In particular , Mr PERSON alleged that the applicant had published the above articles and had broadcast the above election statements “ in order to debase in the public opinion the Deputy Speaker PERSON and to expose him to loss of the trust necessary to perform his public and political functions . ”

The applicant was tried by the NORP ORG DATE and DATE . On DATE she was convicted for having made on television , radio and in the press , between CARDINAL August and DATE , statements that “ Mr PERSON directed by emotions , made ORG , his Deputy , and even the Minister of ORG breach the law because of the solidarity of colleagues ” and that “ DATE there are criminal proceedings pending against him ” . The trial court considered that her publications and statements constituted a single continuous offence of defamation . By making the above statements , the applicant “ defamed PERSON and made untrue allegations which could have debased the victim in the public opinion and exposed him to loss of the trust necessary to perform the functions of Deputy Speaker of the PERSON of GPE and other public functions as well as to work as a lawyeradvocate ” .

As regards the first statement that “ Mr PERSON directed by emotions , made ORG , his Deputy , and even the Minister of ORG breach the law because of the solidarity of colleagues ” the trial court considered that even though Mr PERSON personally made a formal notification of the commission of an offence to the prosecutor PERSON , nevertheless , the prosecutors ORG and GPE acted independently when they made their decisions concerning the applicant ’s case . The court noted that it was the right of every citizen to lodge a request to prosecute somebody and , therefore , the applicant ’s statement that it constituted “ a breach of law for the private interest ” had been untrue .

The court then examined the merits of the applicant ’s allegations that she had been “ arrested , detained in a psychiatric cell , [ her ] flat was provocatively searched for drugs , telephone calls were tapped , a car damaged . ” The ORG established that warrants given by the prosecutor to arrest her , search her flat and tap her telephone calls were given in accordance with the law , however , it acknowledged that the prosecutor should have considered other preventive measures then arrest in order to interrogate the applicant . In sum , the court found as unsubstantiated the allegation that Mr PERSON suggested , ordered , or in other manner “ made the prosecutor to give decision to detain the applicant on remand ” .

With respect to the statement broadcast on CARDINAL and DATE the court observed that : “ between CARDINAL DATE and DATE there were no criminal proceedings pending against PERSON . In fact , the criminal proceedings against him were initiated only on DATE . On that date he was charged with having committed against PERSON a crime described in LAW of LAW . The victim filed written information about that crime on DATE ... ”

The trial court concluded that there was no evidence that while the applicant made the statements in question she “ had a belief based on a wellfounded basis that the allegations were true and that she was defending a socially justified interest ” .

The applicant appealed to ORG against her conviction . On DATE the court gave a judgment in which it upheld her conviction but changed the sentence . The applicant ’s prison term was lowered to DATE suspended for DATE . She was ordered to pay for the publication of the judgment in CARDINAL national DATE and the announcement containing her apologies in the DATE “ ORG ” . Moreover , the applicant was ordered to reimburse the private prosecutor ORG CARDINAL for the costs of the appellate proceedings and to pay a ORG CARDINAL fee to ORG .

The appellate court considered that the trial court ’s assessment of facts and legal reasoning were correct . The court stressed that in order to find that there was no office of defamation , all CARDINAL conditions set out in LAW must be fulfilled jointly . It further stated :

“ ... Turning to the instant case , it should be considered that even if [ the applicant ] proved that her statements directed against Mr PERSON were true or that she had a belief based on a well - founded basis that the allegations were true , that in any event , would not justify the trial court to apply LAW . The firstinstance court rightly found that the action of ORG directed against PERSON was an element of her election campaign , aiming at ‘ GPE ... her own person , in order to obtain a positive election result ... Therefore , [ the applicant ] could not be said to have been defending a socially justified interest , as she had been trying to achieve her private objective ... ”

Nevertheless , ORG found that the sentence imposed on the applicant by the trial court was too harsh . In this connection the court established as follows :

“ ... The appellate court considers that , in deciding the severity of the criminal measures against the applicant , her particular psychological situation - since the beginning of all criminal proceedings against her - should have been taken into consideration . It is beyond doubt that she could have subjectively felt that the [ prosecuting ] authorities had been overactive , which was not without influence on her being able to control her emotions and on her motivations . ”

The applicant could not afford to hire a lawyer to lodge a cassation appeal and therefore she applied to the Minister of ORG and the ORG to lodge a cassation appeal against her conviction . On DATE the ORG allowed her application and filed with ORG a cassation appeal against the judgment of ORG .

The ORG submitted that the courts had failed to take into account evidence pointing to the fact that “ the inadequacy of the actions of the police and the prosecution service in respect of herself and her family in the case concerning the kidnapping of PERSON could have led [ the applicant ] to the justified belief that her allegations concerning Mr PERSON had been true and that she had been ‘ defending a socially justified interest’ ” . In this connection , the ORG stated in his appeal that :

“ Furthermore , the courts’ view that the defendant was not defending a socially justified interest because she was participating in her own election campaign and aiming in the first place to achieve her own private objective is not supported by the evidence which was collected and disclosed at the hearing .

The participation in one ’s own election campaign can not be an obstacle to speaking on the subject of ensuring respect for the law by institutions and public personalities . What is DATE an election campaign invariably constitutes a period of public statements on important social issues , which certainly include the respect for the law , especially by institutions and persons especially obliged to do so .

It is therefore difficult to consider that it was the defendant ’s intention to promote herself and not – by using the opportunity to speak publicly DATE pointing , on the basis of her own experience , to the danger of breaking the law by a public institution as a result of yielding to the pressure of public personalities . ”

The ORG further submitted that prosecutors ORG and GPE had broken the law . He relied on the files on the disciplinary proceedings taken against both prosecutors .

Finally , the ORG challenged the ORG assessment of part of the evidence .

On DATE the Criminal Section of ORG dismissed the cassation appeal . Its reasoning ended with the following conclusion :

“ The irresistible conclusion is that the submissions made in the cassation appeal , formally of a procedural nature , concern in fact the allegation of an error in the assessment of facts taken as the basis for the decision and the assessment of evidence , which is not allowed in cassation proceedings .

Cassation proceedings can not be transformed into third - instance proceedings dedicated to further consideration of all aspects of the submissions made in the appeal , which have already been analysed by the appellate court . ( ... ) ”

In the meantime , on DATE and DATE ORG held hearings on the enforcement of the applicant ’s prison sentence as she had failed to apologise to PERSON . The applicant did not attend the hearings .

On DATE the ORG decided not to enforce the suspended prison sentence imposed on the applicant .

Article CARDINAL of the Criminal Code CARDINAL read as follows :

“ § CARDINAL . Anyone who imputes to another person , a group of persons or an institution such behaviour or characteristics , which may debase them in the public opinion or expose to loss of the trust necessary for a certain position , occupation or a type of activity , shall be liable to imprisonment not exceeding DATE , a restriction of liberty or a fine .

§ CARDINAL . Anyone who raises or makes public untrue allegation about behaviour or characteristics of another person , a group of persons or institutions in order to debase them in the public opinion or expose to loss of the trust necessary for a certain position , occupation or a type of activity , shall be liable to imprisonment not exceeding DATE .

§ CARDINAL . NORP The prosecution takes place under a private bill of indictment . ”

Pursuant to LAW

“ § CARDINAL . There is no offence described in LAW if :

CARDINAL ) an allegation made publicly is true and the offender acts in the defence of a socially justified interest or has a belief based on a well - founded basis that he is defending such an interest , or

CARDINAL ) NORP the offender makes an allegation publicly and has a belief based on a wellfounded basis that the allegation is true and that he is defending a socially justified interest .

§ CARDINAL . Non - existence of an offence resulting from the reasons described in § § CARDINAL and CARDINAL does not exclude the offender ’s liability for defamation because of the form in which an allegation was made or made public . ”


Violation of Art. 6-1 and 6-3-c;Remainder inadmissible

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE . He is currently serving a prison sentence in GPE .

Late on TIME CARDINAL DATE the applicant was arrested by the police at the scene of a crime on suspicion of having set fire to his mother 's flat . His mother died in the fire and another person , PERSON , received serious injuries . The applicant was taken to the police department of the village of GPE in GPE .

According to the applicant , while he was at the police department CARDINAL of the policemen kicked him twice in the chest .

On CARDINAL DATE the applicant was examined by a doctor , who noted a bruise on his head . The applicant stated that he had also complained of pain in the chest but that his chest had not been examined .

After the examination the applicant was transferred to the police department of the town of Pervouralsk . According to the applicant , while he was at the police department he was kicked in the legs , kidneys , chest and ribs by CARDINAL policemen .

On DATE the applicant was questioned by the investigator . He denied involvement in the arson attack and stated that he had been attacked by CARDINAL strangers who had assaulted him and set fire to the flat . He was subsequently put in a cell in the temporary detention unit of ORG .

On DATE Mr L. was appointed as legal aid counsel for the applicant . The applicant asked the investigator and PERSON to arrange a medical examination . The investigator refused his request .

On DATE the applicant was escorted to detention facility no . CARDINAL in PERSON . However , he was not admitted to the detention facility because he did not have a medical certificate . He was brought back to PERSON .

On DATE he was again escorted to detention facility no . CARDINAL in GPE , where DATE for the second time – he was refused admittance without a medical certificate . On his return to PERSON , he was examined by a doctor , who noted a bruise on his chest . On DATE a chest X - ray was performed . On DATE all the X - ray photographs revealing no injuries , including the X - ray photograph of the applicant 's chest , were destroyed by the medical staff of ORG . CARDINAL . A certificate issued by the chief physician of ORG No . CARDINAL on DATE confirmed that the X - ray had revealed no injury to the applicant 's chest .

On DATE the applicant was admitted to detention facility no . CARDINAL in GPE , where he was examined by a doctor . The doctor noted CARDINAL bruises on the applicant 's forehead and a bruise on his chest . When asked by the doctor about the origin of the bruises , the applicant replied that they had been received outside detention facility no . CARDINAL . He signed a statement that he had no complaints and that there was no need for an investigation .

On DATE the applicant complained to the prosecutor , alleging ill - treatment .

On DATE the ORG town prosecutor refused to open criminal proceedings . Having reviewed the reports on the applicant 's arrest and questioning , he found that the applicant 's head had already been injured when the police arrived at the crime scene . The applicant had himself stated to the investigator that he had been assaulted by strangers before the arrest , which provided sufficient explanation for his injuries . There was no evidence that he had been ill - treated by the police .

Following communication of the application , an internal inquiry was conducted in DATE . On DATE the head of ORG of ORG found that the applicant had himself affirmed that he had been beaten by strangers prior to the arrest . The strangers had been identified and questioned . They were the applicant 's neighbours , who had come running to put out the fire in his flat . They had tried to rescue the applicant 's mother from the burning flat , but the applicant had attempted to stop them and subsequently attacked them with an axe . They had had to use force to disarm him . A fight had followed , in the course of which the applicant had been injured . Those facts had been taken into account by the prosecutor , who had refused to open criminal proceedings , finding that the allegations of ill - treatment by the police had been unsubstantiated .

On an unspecified date the case was referred for trial to ORG , where PERSON was appointed as legal aid counsel for the applicant .

The applicant stated that on DATE he had asked the court to provide him with a hearing aid and arrange a meeting with counsel . No response had been received . The Government claimed that no such requests had been made .

On DATE ORG , in CARDINAL hearing , found the applicant guilty of aggravated murder , causing bodily harm and intentional destruction of another 's property and sentenced him DATE taking account of his previous criminal record DATE imprisonment in a high - security colony .

On DATE the applicant lodged an appeal , challenging statements by witnesses and the accuracy of their transcription in the trial record . He advanced the defence of irresistible impulse and asked the court to adopt a different legal characterisation of the imputed offence . He also asked to be given an opportunity to be present at the appeal hearing . On DATE he lodged annex no . CARDINAL to his grounds of appeal , concerning the interpretation of the facts .

On DATE ORG of GPE held , in an interim decision , that the applicant should be present at the hearing .

On DATE the applicant asked ORG to appoint legal aid counsel for him .

On DATE the applicant submitted annex no . CARDINAL to his grounds of appeal , in which he complained of procedural shortcomings of the trial , including ineffective representation by counsel PERSON and NORP , who had never backed his requests and applications . He further complained that the trial court had refused to provide him with a hearing aid and that counsel NORP had failed to support his request to that effect . He also submitted that he had been ill - treated on DATE of the arrest and alleged that the investigator had withdrawn the medical certificate of CARDINAL DATE and his X - ray photograph from the case file . Finally , he asked ORG to inform lawyers from GPE bar association no . CARDINAL , ORG and FAC of the date of the appeal hearing .

On DATE the applicant lodged annex no . CARDINAL to his grounds of appeal , in which he asked , in particular , for legal representation before the appeal court , indicating that he had no legal training and was “ half deaf ” .

On DATE ORG sent telegrams to Pervouralsk bar association no . CARDINAL , ORG no . CARDINAL , ORG and FAC , informing them that the appeal hearing in the applicant 's case would be held on DATE at TIME The telegrams indicated that attendance was not mandatory .

On DATE ORG of GPE held the appeal hearing and upheld the judgment of DATE . The applicant was present but not represented . The appeal judgment was silent on the issue of providing the applicant with a hearing aid . As regards the applicant 's right to a defence , the judgment read as follows :

“ It can be seen from the case materials that [ the applicant ] was represented by Counsel PERSON during the pre - trial investigation and Counsel PERSON during the trial . He did not refuse the services of these counsel . There are no reasons to believe that they defended his interests improperly , nor do the grounds of appeal indicate any such reasons . ”

On DATE the applicant complained to the Presidium of ORG of GPE about , in particular , the appeal court 's refusal to provide him with legal representation . On DATE Judge PERSON responded that there were no grounds on which to institute supervisory review proceedings in respect of the judgments in his case .

A certificate of DATE issued by a doctor of the medical unit of facility no . ORG indicates that the applicant suffers from chronic bilateral sensorineural hearing impairment .

The RSFSR Code of Criminal Procedure ( in force until DATE ) establishes that the investigator or the court shall provide the suspect or the accused with legal aid counsel at his request . In cases where counsel chosen by the accused is not available for a long period of time , the investigator or the court may suggest that the accused choose another counsel or , alternatively , appoint another counsel for the accused ( Article CARDINAL ) .

Counsel must imperatively be appointed by the investigator or the court if , in particular , the accused is mute , deaf or blind or if he can not defend himself on account of a physical or mental impairment ( Article CARDINAL ) .

ORG notifies participants in criminal proceedings of the dates of appeal hearings at their request . The non - appearance by participants who have been notified of the date of the appeal hearing does not preclude the examination of the case ( Article CARDINAL ) .


FREIHEITLICHE PARTEI ÖSTERREICHS, LANDESGRUPPE NIEDERÖSTERREICH v. AUSTRIA

The applicant , ORG , PERSON is the regional branch of ORG in GPE . It is represented before ORG by PERSON , ORG , lawyers practising in GPE .

In DATE Mr PERSON , deputy mayor of ORG and member of ORG of ORG ( ORG ) , published in the municipality ’s party magazine “ ORG ” , inter alia , the following phrase :

“ They are sitting in ORG where a minister really ought to work for the benefit of the Land , but instead they are sabotaging the work of the Land from within ORG . ( PERSON in GPE , PERSON in GPE ) . ”

Subsequently , PERSON , Minister of ORG ( NORP PERSON ) , lodged injunction proceedings under LAW ( ORG ) against PERSON . The proceedings were settled with the following disclaimer published by PERSON in the above party magazine :

“ I wrote in the DATE issue of ORG ( ... ) that the Minister of the Freedom Party PERSON ‘ would sabotage the work of the Land from within the Regional Government’ . I have assured myself of the fact that that is untrue and I , thus , withdraw this reproach against Minister PERSON with sincere regret . Furthermore , I declare not to repeat this statement . ”

Thereupon , the applicant published in no . ORG of its municipal party magazine the following article :

“ How credible is Deputy Mayor PERSON ?

A whole page of negative stories was published by federal , regional and municipal authorities ( LOC , LOC ) about ORG deputies . CARDINAL Minister of ORG was reproached of ‘ sabotaging the work of the Regional Government’ .

It must be embarrassing for a Deputy Mayor to admit to the population : ‘ I have assured myself of the fact that that is untrue and I withdraw this reproach against Minister PERSON with sincere regret.’

There ’s a saying that crosses my mind : ‘ If you are caught lying once , you are never believed even when telling the truth’ ( ‘ PERSON einmal lügt , dem glaubt man nicht und wenn er auch die ORG ) . ”

On DATE Mr PERSON filed a compensation claim under LAW of LAW against the applicant .

On DATE the St. Pölten Regional Court , after having held a hearing , at which the claimant and the applicant ’s lawyer were present , ordered the applicant to pay ORG CARDINAL ( EUR CARDINAL ) as compensation to the claimant and to publish the sentence . It noted in particular that the reproach against the claimant of having lied constituted defamation as it could not be established from his disclaimer that he had deliberately told the untruth when making the statement about the “ sabotage ” in ORG . Further , the implied suggestion to the reader not to believe him in the future was capable to lower him in the public esteem . Though politicians had to display a higher degree of tolerance against criticism than private individuals , the reproach in the present case aimed at ridiculing and mocking the claimant , which exceeded the degree of lawful criticism against a politician .

On DATE the applicant appealed against this sentence , complaining in particular that the court had failed to consider the above article in the light of the political criticism lodged by the claimant against Mr Schimanek . Therefore the article at issue constituted political criticism , lawful within the meaning of LAW .

On DATE ORG , after having held a hearing , attended by the claimant and the applicant ’s lawyer , dismissed the applicant ’s appeal and confirmed ORG sentence . The court found that withdrawing criticism against a political opponent did not constitute a sufficient factual basis for a reproach against a municipal politician of having deliberately told the untruth . In the present case the claimant , a deputy mayor who was not in the very centre of the public eye , had in the court ’s view , “ quasi ” apologised to Minister PERSON , which did not therefore raise the limits of lawful criticism . Furthermore , the claimant had stated in the proceedings that he had made his disclaimer in ORG on strategic procedural grounds and because he had obtained the TIME of a meeting where ORG , PERSON PERSON , had acknowledged good co - operation within ORG . Thus , it could not be established that the applicant had proved the truth of its allegations .

Section CARDINAL § CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW ) , as follows :

“ CARDINAL . As it may be perceived by a third party , anyone who makes an accusation against another of having a contemptible character or attitude , or of behaving contrary to honour or morality , and of such a nature as to make him contemptible or otherwise lower him in public esteem , shall be liable to imprisonment not exceeding DATE or a fine ( ... )

Anyone who commits this offence in a printed document , by broadcasting or otherwise , in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ( ... )

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . "