ITEMID: 001-104712
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MOSLEY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 8. The applicant was born in 1940 and lives in Monaco.
9. On 30 March 2008, the News of the World, a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An edited extract of the video as well as still images were also published on the newspaper’s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper.
10. Later that same day, the applicant’s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours’ notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p.m. that day.
11. The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies.
12. On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage.
13. On 6 April 2008 a second series of articles on the applicant’s sexual activities was published in the News of the World.
14. On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet.
15. In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression:
“28... i) No Convention right has, as such, precedence over another;
ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘intense focus’ is necessary upon the comparative importance of the specific rights being claimed in the individual case;
iii) The Court must take into account the justification for interfering with or restricting each right;
iv) So too, the proportionality test must be applied to each.”
16. He continued:
“29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication.”
17. Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing:
“ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley’s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent’s website.”
18. However, as to the extent of the applicant’s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on:
“33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘in the public domain’ that such an injunction would make no practical difference.
34. As Mr Millar [for News Group Newspapers Limited] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures.”
19. He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting:
“36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.”
20. The edited video footage was restored to the News of the World website shortly afterwards.
21. In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World. As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place:
“Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not?
A: That was a major concern, yes.
Q: You were worried that the court might grant an injunction.
A: It was a consideration, yes.
...
Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified?
A: It is a risk all newspapers are faced with these days.
Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there?
A: No. It happens a lot.
Q: But you were not prepared to risk that on this occasion?
A: On this occasion.”
22. On 24 July 2008 judgment was handed down in the privacy proceedings.
23. Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “hardly satisfactory” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates. He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He concluded:
“170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘in the round’, as Mr Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘mocking’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘responsible journalism’ ... [T]he judgment was made in a manner that could be characterised, at least, as ‘casual’ and ‘cavalier’.”
24. Eady J went on to consider the newspaper’s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He considered that he was not in a position to accept the applicant’s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted:
“209. It is also clear that one of the main reasons for keeping the story ‘under wraps’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.”
25. Eady J concluded that the newspaper articles and images constituted a breach of the applicant’s right to privacy. He found that there were no Nazi connotations in the applicant’s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images.
26. On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression.
27. Eady J recognised that the sum awarded would not constitute adequate redress, noting:
“230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on.
231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.”
28. The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper.
29. The Press Complaints Commission (“PCC”) is an independent body set up to examine complaints about the editorial content of newspapers and magazines, and their websites, in the United Kingdom. If a complaint is upheld, a public ruling will be issued by the PCC and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence.
30. On 18 November 2008 the PCC upheld a complaint by Mr P. Burrell that the News of the World had published an article about him which was inaccurate, in breach of clause 1 of the Editors’ Code of Practice (see further paragraph 31 below). The newspaper had failed to approach him for comments prior to publication. In its adjudication, the PCC noted:
“The [PCC] has previously said that failure to contact the subjects of articles before publication – while not obligatory – may constitute a lack of care under Clause 1 in some circumstances. It has never said that people have no right ever to comment on a story, or to be offered a right of reply, if they have misled people in another context.
The [PCC] was also aware of the newspaper’s concerns about an undeserved injunction being granted. However, it did not consider that this meant that the requirements of the Code did not apply. Given the nature of the story, and how the newspaper wished to present it, the inclusion of the complainant’s comments was necessary to avoid breaching the Code.
...
It has never been an absolute requirement for newspapers to contact those who are about to feature in articles. This would be impractical for a number of reasons: often there will be no dispute about the facts, or the information will be innocuous; the volume of people mentioned in straightforward stories would make it impossible; and legitimate investigations might on some occasions be compromised by such a rule. However, in this case the newspaper made the wrong decision and the complaint was upheld.”
31. The PCC is responsible for ratifying and enforcing the Editors’ Code of Practice (“the Editors’ Code”). The Editors’ Code is regularly reviewed and amended as required. Clause 1 of the Editors’ Code provides, inter alia, that the press must take care not to publish inaccurate, misleading or distorted information, including pictures.
32. Clause 3 of the Editors’ Code deals with privacy. At the relevant time, it provided as follows:
“3. *Privacy
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual’s private life without consent.
ii) It is unacceptable to photograph individuals in a private place without their consent.
Note - Private places are public or private property where there is a reasonable expectation of privacy.”
33. Clause 10 of the Editors’ Code sets out provisions on clandestine recordings:
“10 *Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”
34. At the relevant time, the “public interest” was explained in the Editors’ Code as follows:
“There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in freedom of expression itself.
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.
4. The PCC will consider the extent to which material is already in the public domain, or will become so.
...”
35. Paragraph 3 was amended in October 2009 to provide:
“Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.”
36. The Editors’ Codebook accompanies the Editors’ Code and is intended to provide guidance as to compliance with the Code’s provisions. It underwent major revision in January 2011, providing updates on prior notification and “public interest”. As regards prior notification, it now explains:
“There is wide agreement that prior notification of the subjects of stories ahead of publication, while often desirable, could not – and should not – be obligatory. It would be impractical, often unnecessary, impossible to achieve, and could jeopardise legitimate investigations. Yet, at the same time, a failure to include relevant sides of the story can lead to inaccuracy and breach the Code. The PCC has set out guidance on how to square this circle:
1. If there is no doubt about the story’s truth, it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of Clause 1 of the Code [on accuracy];
2. Where information has come from a source (especially an anonymous one), it may be prudent to seek the ‘other side of the story’ before the article appears;
...”
37. As to the “public interest” test, the Codebook notes:
“In judging publications’ claims that otherwise prohibited information or methods were justifiable in the public interest, both the Code and the PCC set high thresholds. The burden is on the editor to demonstrate fully how the public interest was served.”
38. It provides details of previous rulings of the PCC on the question of the “public interest” and identifies key questions as:
“Was it reasonable to believe that publication or journalistic activity would have served the public interest? The PCC would require a full explanation showing that the grounds were genuine and sound in the circumstances.
If clandestine methods, subterfuge, harassment or payments to criminals or witnesses are involved, could the information have been obtained by other means?
Is the information in the public domain, or likely to become so?
If children are involved, is the public interest in publication exceptional?”
39. Broadcasters are subject to the Ofcom Broadcasting Code (“the Ofcom Code”). Section 7 of the Ofcom Code deals with fairness and provides, inter alia:
“7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that:
...
anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute.”
40. Principle 8 of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes.
41. Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant’s post-publication conduct makes the original injury worse. An alternative to damages is an account of the profits made by the defendant. The court can also order delivery-up of the offending material.
42. Further protection is offered by the Data Protection Act 1998, which makes provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. It sets out in a schedule eight data protection principles which must be observed by data controllers in the United Kingdom. These principles include the principles that personal data shall be processed fairly and lawfully; that personal data shall be obtained only for one or more specified and lawful purposes; that personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are processed; that personal data shall be accurate and up to date; and that personal data shall be processed in accordance with the rights of data subjects under the Act. Further requirements are stipulated in respect of “sensitive personal data”, which includes information as to a person’s sexual life.
43. However, section 32(1) of the Act provides a “public interest” exemption from the data protection principles where information is processed for journalism purposes:
“Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—
(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.”
44. Section 3 defines “the special purposes” as including the “purposes of journalism”. Section 32(2) provides that the exemption relates to the data protection principles, except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Section 32(3) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest.
45. Section 13 of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the Act and section 14 allows him to apply for rectification, erasure or destruction of personal data.
46. The position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, a claimant seeking an interim injunction was required to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted.
47. The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of the Human Rights Act 1998. Section 12 of the Act provides:
“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.”
48. The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that:
“15. When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘serious question to be tried’ or a ‘real prospect’ of success at the trial.”
49. He concluded that:
“22. Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”
50. Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ 595), the Court of Appeal noted:
“258. Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998.”
51. On 9 February 2010 the House of Commons Culture, Media and Sport Committee (“the Select Committee”) published a report on Press standards, privacy and libel (2nd Report of Session 2009-10, HC 362-I). The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders, including the applicant and the editor of the News of the World. A chapter of the report was dedicated to examining privacy and breach of confidence. As regards the evidence received on the need for a rule of pre-notification, the report noted:
“82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World’s intention to publish. Mr Myler [the editor of the News of the World] told us that he and his colleagues at the newspaper were conscious of this: ‘we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction’.”
52. According to the evidence received by the Select Committee, journalists contacted the subjects of their articles prior to publication in the great majority of cases. However, there was some evidence before the Select Committee that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication.The report noted:
“91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.”
53. The Select Committee recommended that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception, and that guidance for journalists and editors on pre-notifying should be included in the Editors’ Codebook.
54. As to the need for a legally binding pre-notification requirement, the Select Committee concluded that:
“93. ... a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a ‘public interest’ exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.”
55. On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a declaration on mass communication media and human rights. As regards the duty of the press to act responsibly, the declaration indicated that it would be desirable to put in place:
“(a) professional training for journalists under the responsibility of editors and journalists;
(b) a professional code of ethics for journalists ; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights;
(c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself.”
56. The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by Article 8, and that the exercise of the former right should not be allowed to destroy the existence of the latter. It observed that the right to privacy consisted essentially in the right to live one’s own life with a minimum of interference and concerned private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially. The declaration also stated that the right to privacy afforded by Article 8 should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media, and that national legislation should guarantee this protection
57. On 26 June 1998 the Parliamentary Assembly adopted a further resolution, Resolution 1165, on the right to privacy, focusing on public figures. The Resolution noted that personal privacy was often invaded, even in countries with specific legislation to protect it, as people’s private lives had become a highly lucrative commodity for certain sectors of the media. It continued:
“8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.
9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.
10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.
58. The resolution reaffirmed the importance of every person’s right to privacy and of the right to freedom of expression as fundamental to a democratic society. It noted that these rights were neither absolute nor in any hierarchical order, since they were of equal value. Further, the right to privacy afforded by Article 8 required protection against interference by private persons or institutions, including the mass media. The resolution also set out specific guidelines on the necessary content of national legislation:
“i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;
ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;
...
iv. economic penalties should be envisaged for publishing groups which systematically invade people’s privacy;
...
vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;
viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published.”
59. On 3 October 2008 Resolution 1636 (2008) on indicators for media in a democracy was adopted by the Parliamentary Assembly. It recalled the importance of freedom of expression of the press in a democracy and called on member States to assess their national media legislation bearing in mind the basic principle that there should be a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists and that journalists should set up their own professional codes of conduct and that they should be applied.
60. At the Sixth European Ministerial Conference on Mass Media Policy in Cracow, 15-16 June 2000, the participating Ministers adopted a declaration on “A media policy for tomorrow”. In the declaration, the representatives of the Contracting States agreed on a programme of action at pan-European level, to be implemented by the Steering Committee on Mass Media (“CDMM”). The programme of action included the following provisions:
“I. Activities relating to the balance between freedom of expression and information and other rights and legitimate interests
The CDMM should:
- step up its work on the balance between freedom of expression and information and the right to privacy;
- complete the work on the disclosure of information and the expression of opinions about political figures and public officials, the disclosure of information in the public interest, as well as media reporting on legal proceedings, so as to define common orientations for the whole of Europe as speedily as possible;
- examine the problems caused by the dissemination of material casting doubt on individuals’ dignity and integrity, even in the traditional media;
- examine the implications of the on-line dissemination of information by individuals or other sources which may not be bound by professional journalistic ethics or codes of conduct.”
61. Following the adoption of the programme of action, the CDMM established a Group of Specialists on freedom of expression and other fundamental rights (“MM-S-FR”). The MM-S-FR prepared a draft declaration of the Committee of Ministers on freedom of expression and the right to respect for private life which was reviewed by the CDMM at its meetings of 10 July 2003 and 21 January 2004. However, the CCDM did not invite the Committee of Ministers to adopt the declaration.
62. According to the information provided by the parties or otherwise available to the Court, there is no pre-notification requirement as such in any of the legal systems of the Contracting Parties. However, some member States require the subject’s consent to publication of material relating to private life, in many cases subject to some form of “public interest” exception. Thus the failure to obtain consent may have legal consequences in any subsequent civil proceedings commenced by the subject of the publication.
63. A number of member States have adopted codes of practice, generally not binding, which also contain some form of consent requirement.
64. The EC Directive was adopted in order to ensure adequate protection for personal data. It applies to the 27 Member States of the European Union. It was transposed in the United Kingdom through the Data Protection Act 1998 (see paragraphs 42-45 above). There is no reference in the EC Directive to the need to provide for a pre-notification requirement in privacy cases.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-23942
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: OSTERREICHISCHER RUNDFUNK v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant company, the Österreichischer Rundfunk (the Austrian broadcasting corporation, the “ORF”), is a public law institution (Körperschaft des öffentlichen Rechts) with its seat in Vienna. It is represented before the Court by Mr G. Korn, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 April 1998 the applicant company broadcast a report about a press conference of the Federal Minister of Justice (Justizminister) in which he presented a reform of the preliminary investigation procedure underlining its necessity by the following statement:
“See for example the letter-bomb campaign proceedings 1995. Repeatedly investigation errors occur. Judiciary and police authorities mutually accuse each other. Finally, it turns out that the letter-bomb campaign case has been a neo-nazi case.”
In this context the Minister mentioned as an example of investigation errors, inter alia, the name of B., who had been acquitted of the charge of participating in the letter-bomb assassinations but convicted of offences under the National Socialism Prohibition Act (Verbotsgesetz). The criminal proceedings against B. and the following criminal proceedings concerning the letter-bomb campaign against another accused, who had been arrested in 1997 and convicted in 1999, received extensive media coverage.
When transmitting the above quotation of the Minister, the applicant company showed a picture of B. before his trial in 1995, without mentioning his name, his acquittal of the charge concerning the letter-bomb assassinations, the service of his sentence of offences under the Prohibition Act or his release on parole three months before the report at issue was broadcast.
On 13 May 1998 B. brought proceedings under Section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company, requesting that the applicant be prohibited from publishing his picture without his consent, in particular such pictures that showed him as an accused in the courtroom, firstly, if the accompanying text established a connection with the letter-bomb campaign without reference to his final acquittal or, secondly, if it was maintained in the accompanying text, or the impression was created that he was a neo-nazi, was convicted of offences under the National Socialism Prohibition Act without mentioning that the imposed sentence had already been served, or that he had been released on parole meanwhile.
On 8 September 1998 the Vienna Commercial Court (Handelsgericht) dismissed B.'s claims.
The court observed that Section 78 of the Copyright Act prohibited the publication of a person's picture if it violated that person's legitimate interests. As regards the first claim, the court found that B.'s legitimate interests had not been violated as it was a matter of common knowledge that he had been acquitted of the charge of participating in the letter-bomb campaign. Since he was therefore no longer associated with these proceedings by the public, the report could not have given the impression that he had been convicted of this charge. In respect of the second claim, the court found that the report could not have violated B.'s interests as he was finally convicted of offences under the Prohibition Act. Further the court observed that the applicant company's interest in publishing the picture had to be balanced against B.'s interest in the protection of his image, under Section 7a of the Media Act (Mediengesetz). Pursuant to this provision the legitimate interests of the person concerned had to be regarded as harmed if the publication substantially prejudiced that person's social and professional advancement. The court found that B.'s interests were not infringed by the neutral and noncondemnatory publication of his picture as the real subject-matter of the report was the planned reform of the preliminary investigation procedure.
On 30 December 1998 the Vienna Court of Appeal (Oberlandesgericht) dismissed B.'s appeal.
It confirmed the Commercial Court's finding that the report could not have given the impression that the applicant had been convicted of participating in the letter-bomb assassinations. Further it found, contrary to B.'s submissions, that Section 7a of the Media Act was applicable since B. had been convicted of a crime and not of a lesser offence and did not therefore enjoy unlimited protection of his identity. In particular, the court found that the publication of B.'s picture met a need for information and it had not prejudiced his advancement as he had already found employment and as the picture of the trial had only been shown in order to demonstrate that B. had been a victim of investigation errors. Moreover, he had not been mentioned by name.
On 1 June 1999 the Supreme Court, allowing B.'s further appeal, set aside the decisions of the first and second instance court and granted his claims.
It found that the publication of B.'s picture, taken before the trial concerning the charges against him at that time, had obviously interfered with his interests as it had reminded the public of B.'s court appearance three years after his trial and after his release on parole. Further, the court found that there had been no need for such information and that the publication of the picture did not add any information to the applicant company's report about the Minister's press conference. The court concluded that it was not called upon to balance the conflicting interests concerning B.'s social and professional advancement, within the meaning of Section 7a of the Media Act, as there was no public interest in having B.'s picture published. The court found that the publication had precisely the effects prohibited by Section 78 of the Copyright Act.
Thus, the court ordered the applicant company to refrain from publishing or disseminating B.'s picture without his consent, in particular such pictures that showed him as an accused in the courtroom, firstly, if the accompanying text established a connection with the letter-bomb campaign of 1995 without reference to his final acquittal or, secondly, if it was maintained in the accompanying text, or the impression was created that he was a neo-nazi or that he was convicted of offences under the National Socialism Prohibition Act without mentioning that the imposed sentence had already been served, or that he had been released on parole meanwhile.
a. In 1966 the ORF was established as a non-profit orientated limited liability company, whose owners were the Federal Authorities (Bund) and the Länder. The respective act (Federal Law Gazette no. 195/1966) defined broadcasting services as public responsibility. The supervisory board (Aufsichtsrat) consisted of 20 members (nine of whom were appointed by the Länder, six by the Federal Government and five by the shareholder's assembly (Gesellschafterversammlung), and it appointed the managing director (Generalintendant).
b. On 10 July 1974 the legislator adopted the Constitutional Act concerning the safeguarding of the independence of broadcasting (BVG-Rundfunk, Federal Law Gazette no. 396/1974). Article 1 of the Constitutional Broadcasting Act, as far as material, reads as follows:
“(...)
2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall be a public service. “
c. The Broadcasting Act of 10 July 1974 (Rundfunkgesetz 1974, Federal Law Gazette no. 197/1974) transformed the ORF into a public-law corporation, a non-profit orientated legal entity. The act established the ORF's duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (Section 2 (1) 1) and to do so via at least two television channels and three radio stations, one of which must be a regional station (Section 3). Broadcasting time must be allocated to the political parties represented in the national parliament (Section 5 (1)).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all disputes concerning the application of the above-mentioned Act which fall outside the jurisdiction of an administrative authority or court (Sections 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government.
The bodies of the ORF are the board of trustees (Kuratorium), the managing director, the representatives of the listeners and viewers (Hörer- und Sehervertretung) and the Auditing Commission (Prüfungskommission). The ORF is entitled to collect broadcasting fees.
d. In 2001 the ORF was transformed into a public law foundation, a legal entity without an owner (ORF-G, Federal Law Gazette no. 83/2001). The foundation has to fulfil a public-law mandate which comprises operating a certain number of programs and providing the necessary technical facilities that these programs be received in defined areas (Versorgungsauftrag). The ORF's bodies are the Foundation Council (Stifungsrat), the Director General (Generaldirektor), the Audience Council (Publikumsrat) and the Auditing Commission. The Foundation Council is in charge of monitoring the management and of electing the Director General. It consists of 35 members (of which six are appointed by the Federal Government upon proposals of the political parties represented in the National Assembly (Nationalrat), nine by the Federal Government, six by the Audience Council, five by the Central Works Council (Zentralbetriebsrat) and nine members representing the Länder).
Section 78 of the Copyright Act reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured. (...)
Section 7a of the Media Act reads as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where the legitimate interests of that person are thereby harmed and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6(1), second sentence, shall apply.
(2) The legitimate interests of the victim shall in any event be harmed if the publication
1. in the case of subsection (1)1, is such as to give rise to an interference with the victim's strictly private life or to his or her exposure,
2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim's advancement.


ITEMID: 001-71232
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SZOBOSZLAY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1928 and lives in Eger.
5. In 1990 the applicant hired two individuals to construct a well for him. Since they had not completed the work in due time, in December 1990 he brought an action with a view to obliging them to complete the job. In the alternative, he claimed damages.
6. In response to the applicant’s motion for bias, the Supreme Court appointed the Mezőkövesd District Court to hear the case. After having held several hearings and obtained the opinion of an expert, on 27 September 1994 this court dismissed the applicant’s action.
7. In pursuit of the applicant’s repeated motion for bias, the Supreme Court appointed the Hajdú-Bihar County Regional Court to deal with his appeal. On 11 October 1995 that court quashed the District Court’s decision and remitted the case.
8. On 11 June 1996 the Supreme Court appointed the Debrecen District Court to hear the case in the resumed proceedings. After having held several hearings and obtained the supplementary opinion of an expert, on 7 October1998 that court dismissed the applicant’s action.
9. On 9 June 1999 the Regional Court quashed this decision and, again, remitted the case.
10. In the resumed proceedings, the Debrecen District Court held several hearings and obtained the opinion of another expert. It heard several witnesses and the expert. On 18 December 2000 it dismissed the applicant’s action.
11. On 21 March 2001 the Regional Court dismissed the applicant’s appeal.
12. On 19 June 2001 the Supreme Court refused the applicant leave to seek a review, in accordance with section 271 § 3 of the Code of Civil Procedure, given that the amount of the claim fell below the threshold requirements for leave to be considered.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87448
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KART v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed;Violation of Art. 6-1
JUDGES: András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 7. The applicant was born in 1954 and lives in Ankara.
8. In the parliamentary elections of 3 November 2002, as a member of the People's Republican Party (CHP), he was elected MP for the Konya constituency to the Grand National Assembly of Turkey (“the National Assembly”).
9. Prior to his election he practised as a lawyer in Konya and, in the course of his professional activities, two sets of criminal proceedings were brought against him, one for insulting a lawyer and the other for insulting a public official.
10. As an MP he enjoyed parliamentary immunity.
11. On 23 December 2002 the Karapınar public prosecutor applied to the General Directorate of the Ministry of Justice to have the applicant's parliamentary immunity lifted for the purposes of the criminal proceedings against him for insulting a lawyer.
12. On 17 January 2003 the General Directorate of the Ministry of Justice transmitted the request to the Prime Minister's Office.
13. On 11 April 2003 the Konya Assize Court (“the Assize Court”) adopted a decision suspending the criminal proceedings against the applicant for insulting a public official, by virtue of Article 83 of the Constitution (on parliamentary immunity) and Article 253 § 4 of the Code of Criminal Procedure.
14. On 4 December 2003 the Assize Court transmitted the case file to the Ministry of Justice with a view to having the applicant's parliamentary immunity lifted.
15. On 23 December 2003 the Department of Criminal Affairs of the Ministry of Justice referred the question to the Prime Minister.
16. The Prime Minister's Office transmitted the case file to the National Assembly's joint committee (“the joint committee”).
17. On 28 May 2004, after noting that the applicant had requested the lifting of his immunity, the joint committee decided, in view of the nature of the charges, to stay the proceedings against him for insulting a public official until the end of his term of parliamentary office. It transmitted its decision to the plenary Assembly of the National Assembly (“the plenary Assembly”).
18. When the plenary Assembly met on 8 December 2004 the joint committee's report was read and appended to the minutes of the meeting.
19. On 15 December 2004 the applicant challenged the joint committee's decision. In his pleadings he made the point that parliamentary immunity had not been introduced to render Members of Parliament unaccountable or immune from punishment, but to allow them to discharge their duties wholly independently and dispassionately. Unlike non-liability, he argued, immunity was by nature a relative and temporary privilege. However, the scope of the immunity, the procedure for lifting it and the shortcomings in its implementation had undermined due respect for the National Assembly. The applicant added that it was unacceptable, in a society governed by the rule of law, that an institution originally meant to help MPs to discharge their duties should be transformed into a personal privilege.
20. On an unspecified date examination of the matter of the lifting of the applicant's parliamentary immunity in the proceedings concerning the insulting of a lawyer was referred to the joint committee under Rules 131 et seq. of the Rules of Procedure of the National Assembly. The National Assembly decided to stay the proceedings until the dissolution of the 22nd Parliament.
21. On 31 January 2005 the applicant challenged that decision.
22. His file was then sent before the plenary Assembly.
23. On 7 February 2005 the Secretariat of the Speaker's Office informed the applicant that the files concerning him had been placed on the agenda of the plenary Assembly.
24. At the meeting of the plenary Assembly on 16 February 2005 the applicant once again asked to be allowed to avail himself of his right to be judged in a fair trial and requested that the obstacles to his exercise of that right be removed.
25. The applicant was re-elected as CHP party MP for the Konya constituency in the parliamentary elections of 22 July 2007.
26. On 8 January 2008 the Speaker of the National Assembly sent him a letter informing him of progress with the procedure for lifting his parliamentary immunity.
The relevant passages read as follows:
“(...) during the 22nd Parliament [2002-2007] 299 files concerning immunity were forwarded to the joint committee. In 252 cases the committee decided to stay the proceedings until the next dissolution. In 226 cases that decision was challenged. The files corresponding to those cases were placed on the plenary Assembly's agenda for examination. However, the plenary Assembly did not examine them.
During the 22nd Parliament's term two files concerned your immunity. The first, file no. 3/176, concerned the proceedings brought against you by the Konya-Ereğli public prosecutor for insulting a lawyer; the second, file no. 3/453, concerned the proceedings before the Konya Assize Court for insulting a public official. In both cases the joint committee decided to stay the proceedings until the end of your term of office. Following your appeal, the files were placed on the plenary Assembly's agenda but have not been examined.
In this 23rd Parliament [which started in 2007] 77 files concerning the lifting of immunity remain pending before the joint committee. Two of those files are in your name; they were given the numbers 3/107 and 3/129 following your re-election on 22 July 2007. Since the beginning of this Parliament all the files, including yours, have been sent before three preparatory committees set up by the joint committee. These committees started work on 27 December 2007 (...). They are to announce their decisions within a month of that date.”
27. On 23 and 24 January 2008 the applicant filed two defence memorials against the suspension of the two sets of criminal proceedings against him. In them he repeated his wish to be allowed to exercise his right to a fair trial.
28. Article 83 of the Turkish Constitution, on the subject of parliamentary immunity, reads as follows:
“Members of the Turkish Grand National Assembly shall not be liable for their votes and statements concerning parliamentary functions, for the views they express before the Assembly or, unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.
A Member who is alleged to have committed an offence before or after election shall not be arrested, interrogated, detained or tried unless the Assembly decides otherwise. This provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to Article 14 of the Constitution if an investigation has been initiated before the election. However, in such situations the competent authority shall notify the Turkish Grand National Assembly immediately and directly.
The execution of a criminal sentence imposed on a member of the Turkish Grand National Assembly either before or after his election shall be suspended until he ceases to be a member; the statute of limitations does not apply during the term of membership.
Investigation and prosecution of a re-elected deputy shall be subject to whether or not the Assembly lifts immunity in the case of the individual involved.
Political party groups in the Turkish Grand National Assembly shall not hold discussions or take decisions regarding parliamentary immunity.”
29. The Rules of Procedure of the Grand National Assembly of Turkey provide, inter alia:
“Work of the plenary Assembly
Agenda
Rule 49: the agenda of the plenary Assembly of the Grand National Assembly of Turkey shall comprise:
1. Presentations of the Speaker to the plenary Assembly.
2. Work to be included in the special agenda.
3. Votes.
4. Questions to be put to the vote.
5. Parliamentary reports.
6. General debates and prior discussions on parliamentary research to be done.
7. Oral questions.
8. Draft legislation and other work submitted by the committees.
At the proposal of the recommendation committee and with the agreement of the plenary Assembly, it is possible to set aside a day of the week and allocate a set time for items 6 and 7.
It is also possible to set aside a day of the week for the votes referred to in items 3 and 4.
The order in which items on the agenda are taken is determined according to the date on which they were received by the Speaker's Office.
When the Speaker deems it necessary, the recommendation committee may propose to the plenary Assembly the order in which matters pertaining to item 8 should be examined. Requests concerning that order submitted by the Government, substantive committees and the authors of bills shall be examined by the recommendation committee.
The opinion of the recommendation committee shall be submitted for the approval of the plenary Assembly. (...)
No subject which has not been subjected to the opinion of the recommendation committee, confirmed by the plenary Assembly and announced in advance by the Speaker's Office may be debated in the plenary Assembly. (...)
Immunity
Requests to lift immunity and committee competent to examine them
Rule 131: requests for the lifting of a Member's parliamentary immunity shall be transmitted by the Speaker's Office to the joint committee, composed of members of the constitutional and judicial committees. (...)
The preparatory committee and its hearings
Rule 132: the Chair of the joint committee shall appoint a preparatory committee composed of five sworn members to examine files concerning immunity. (...)
This committee shall examine all the documents and, if necessary, hear the Member concerned; it shall not hear witnesses.
The preparatory committee shall submit its report within one month of being convened.
The joint committee shall finalise the report within one month.
The report of the joint committee
Rule 133: the joint committee shall examine the report and its appendices [submitted by] the preparatory committee.
The joint committee shall decide whether to lift the Member's immunity or to stay the proceedings until the end of the term of parliamentary or ministerial office.
If the joint committee's report recommends a stay of proceedings, it shall be read out to the plenary Assembly. If no objection to the report is received in writing within ten days, the report shall become final.
If the report recommends lifting immunity or if a written objection is received within ten days, the report shall be examined by the plenary Assembly.
If the proceedings have been stayed and that decision is overturned by the plenary Assembly, no action may be taken against the Member concerned until the end of his or her term of parliamentary office, even if the legislature has been renewed.
The rights of the defence
Rule 134: When a request to lift a Member's immunity has been received, the Member concerned may, if he wishes, defend himself or be defended by another Member before the preparatory committee, the joint committee and the plenary Assembly.
The matter shall be decided on the evidence if a Member who has asked to speak in his defence fails to answer the invitation to do so.
In any event, the defence shall have a say.
The mere fact that a Member requests permission to waive his or her immunity shall not suffice.
30. Under Article 107 of the old Criminal Code enshrined in Law no. 765 of 1 March 1936:
“If the opening of proceedings is subject to authorisation, adoption of a decision or the resolution of a problem pending before another body (...), the running of time for the purposes of limitation shall be suspended until such authorisation is obtained, such decision adopted or such problem resolved.”
31. Law no. 5237 on the new Criminal Code was passed on 27 September 2004 and published in the Official Gazette on 12 October 2004. Article 67 of the Code provides:
“(1) When the investigation or prosecution depend on authorisation, adoption of a decision or the necessary resolution of a problem pending before another body, the running of time for the purposes of limitation shall be suspended until such authorisation [is granted], such decision adopted or such problem resolved (...)
(2) Where an offence has been committed, the running of time shall be suspended from the time when:
(a) the prosecutor questions or takes a statement from the suspect or the accused;
(b) a decision is taken to remand the suspect or the accused in custody;
(c) an indictment for the offence is issued;
(d) a conviction is pronounced, even if it concerns only some of the accused parties.
3) A suspension of limitation causes time to begin to run again. Where there are several grounds for suspension of limitation, the time begins to run again from the date of the last event triggering suspension (...)”
32. On 21 March 1994 the Turkish Constitutional Court adopted a series of judgments in cases concerning the lifting of several MPs' parliamentary immunity. Those cases gave the Constitutional Court an opportunity to clarify the scope of parliamentary immunity. The relevant passages of the judgments read as follows:
“a) Meaning of non-liability and parliamentary immunity
All democratic countries have granted the members of their legislative assemblies certain privileges and immunities in order to allow them to perform their legislative tasks properly. Quite evidently, the aim of granting the members of legislative assemblies a different status from that enjoyed by other citizens is not to make them a privileged group who are above the law.
Parliamentary immunity is not an aim; it is a means of enabling MPs to fulfil the nation's wishes in full by perfectly reflecting the wishes of the people within the Assembly.
Even though Article 83 of the Constitution is entitled “Parliamentary Immunity”, it actually establishes two institutions: parliamentary non-liability and parliamentary immunity. The first paragraph of the Article explains that the members of the Grand National Assembly of Turkey are not liable for their votes and statements in the course of the Assembly's work, for the views they express before the Assembly or, unless the Assembly decides otherwise on the proposal of the Speaker, for repeating or revealing these outside the Assembly.
The second paragraph of the Article stipulates that a Member who is alleged to have committed an offence before or after election may not be arrested, interrogated, detained or tried unless the Assembly decides otherwise. The only cases where this provision does not apply are those where a Member is caught in the act of committing a crime punishable by a heavy penalty, provided that proceedings were initiated before the election, and cases subject to Article 14 of the Constitution.
Article 83 of the Constitution does not specify on what grounds immunity may be lifted, and the Rules of Procedure of the Assembly do not cover the subject. That does not mean that the legislature has a free hand in the matter. The rationale for immunity and the way in which it has developed over the years show that Parliament's powers concerning the lifting of immunity are not absolute but limited. Furthermore, the fact that immunity has a place in the Constitution means that the rules and aims of immunity must be defined in the light of the rules and aims of the Constitution. There is no doubt that the intention, when immunity was provided for in Article 83, was to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered, and rightly so, from all worry and pressure. In other words, the aim of parliamentary immunity is to ensure that MPs are not prevented from fulfilling their functions, even temporarily, by arbitrary criminal proceedings. So the powers of the legislature in the matter are limited by the purpose for which immunity was institutionalised in the Constitution. (...)
In criminal proceedings an MP whose parliamentary immunity has been lifted is like any other citizen. He enjoys all the guarantees set out in the Constitution and laws of the Republic of Turkey. All the principles that apply to citizens likewise apply to him. He may, for example, be taken into police custody, questioned, detained and, to all intents and purposes, subjected like any other citizen to all the applicable procedural rules. (...)”
33. On 29 January 2008 the Secretariat of the National Assembly drew up a list of all the instances of lifting of parliamentary immunity since 1991. According to that list, between 1991 and 2008 the National Assembly lifted the immunity of seventeen MPs. In the course of the 22nd Parliament's life 299 files concerning immunity were forwarded to the joint committee. In 252 cases the committee decided to stay the proceedings until the end of the MP's term of office. In 226 cases that decision was challenged. The files corresponding to those cases were placed on the plenary Assembly's agenda but never examined.
Since the beginning of the 23rd Parliament, 78 files concerning the lifting of immunity have been sent before the joint committee. One of them, by request, was forwarded to the Prime Minister's Office; the other 77 remain pending before the joint committee.
34. Article 40 of the Statute of the Council of Europe (5 May 1949) provides:
“a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative [Parliamentary] Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions.”
35. The General Agreement on Privileges and Immunities of the Council of Europe (2 September 1949) includes the following provisions:
“Article 14: Representatives to the Consultative [Parliamentary] Assembly and their substitutes shall be immune from all official interrogation and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.
Article 15: During the sessions of the Consultative [Parliamentary] Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy:
a. on their national territory, the immunities accorded in those countries to members of Parliament;
b. on the territory of all other member States, exemption from arrest and prosecution.
This immunity also applies when they are travelling to and from the place of meeting of the Consultative [Parliamentary] Assembly. It does not, however, apply when Representatives and their substitutes are found committing, attempting to commit, or just having committed an offence, nor in cases where the Assembly has waived the immunity.”
36. The additional Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (6 November 1952) provides:
“Article 3: The provisions of Article 15 of the Agreement shall apply to Representatives to the [Parliamentary] Assembly, and their Substitutes, at any time when they are attending or travelling to and from, meetings of committees and sub committees of the Consultative [Parliamentary] Assembly, whether or not the Assembly is itself in session at such time.
Article 5: Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.”
37. In its Resolution 1490 (2006) on the Interpretation of Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe, the Parliamentary Assembly of the Council of Europe stated:
“1. The Parliamentary Assembly refers to its Resolution 1325 (2003) and Recommendation 1602 (2003) on immunities of members of the Parliamentary Assembly, which underlined that immunities are granted in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office. (...)
8. It resolves to interpret Article 15.a as follows: regardless of the national regime of immunity, Assembly Representatives or Substitutes shall be protected against prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.
9. The Assembly also considers that it is appropriate for the relevant Assembly organs, when examining requests for the waiver of immunity and for the defence of immunity of its members, to question whether the competent national authorities have respected the European Convention on Human Rights as interpreted by the European Court of Human Rights and other relevant Council of Europe legal instruments and texts which the respective countries have ratified or accepted. The Assembly should express its concern when Council of Europe norms have been obviously disregarded in respect of one of its members. (...)
11. Consequently the Assembly decides to:
11.1. add the following paragraph after paragraph 6 in Rule 64 of the Assembly's Rules of Procedure:
“a. When dealing with requests for the waiver of the Council of Europe immunity, or with requests to defend that immunity of an Assembly member, the competent Assembly bodies shall interpret Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe as follows. Assembly Representatives or Substitutes are immune from prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.
b. The terms 'in the exercise of their functions' include all official duties discharged by Assembly Representatives and Substitutes in the member states on the basis of a decision by a competent Assembly body and with the consent of the appropriate national authorities.
c. In case of doubt, the Bureau of the Assembly shall decide if Assembly members' activities took place in the exercise of their functions.”
38. Article 10 of the Protocol on Privileges and Immunities of the European Communities (PPI) (8 April 1965) provides:
“During the sessions of the Assembly, its members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their Parliament;
(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.
Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the Assembly.
Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the Assembly from exercising its right to waive the immunity of one of its members.”
39. Rule 6 of the Rules of Procedure of the European Parliament, concerning the waiver of parliamentary immunity, states:
“1. In the exercise of its powers in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in performance of their duties.
2. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived shall be announced in Parliament and referred to the committee responsible.
3. Any request addressed to the President by a Member or a former Member to defend privileges and immunities shall be announced in Parliament and referred to the committee responsible.
The Member or former Member may be represented by another Member. The request may not be made by another Member without the agreement of the Member concerned.
4. As a matter of urgency, in circumstances where a Member is arrested or has his freedom of movement curtailed in apparent breach of his privileges and immunities, the President, after having consulted the chairman and rapporteur of the committee responsible, may take an initiative to assert the privileges and immunities of the Member concerned. The President shall communicate his initiative to the committee and inform Parliament.”
40. The evaluation report on Turkey adopted by GRECO (Group of States against Corruption) on 10 March 2006 (27th plenary meeting) states:
“III. EXTENT AND SCOPE OF IMMUNITIES
80. According to the Constitution, the following categories of high-ranking officials benefit from immunity in criminal proceedings:
- the President
- Members of Parliament
- Prime Minister and ministers. (...)
84. Parliamentary Immunity is regulated in Article 83 of the Constitution. Members of Parliament shall not be liable for their votes and statements concerning parliamentary functions, for the views they express before the Assembly, or unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly (Article 83 (1)).
85. Moreover, a Member of Parliament who is suspected of having committed an offence before or after election, cannot be arrested, interrogated, detained or tried unless the Assembly decides to lift the immunity. This provision does not apply in cases where a Member is caught in the act of committing a crime punishable by a heavy penalty, nor does it apply if an investigation has been initiated before the parliamentary election. However, in such situations the competent authority shall notify Parliament immediately (Article 83(2)).
86. The execution of a criminal sentence imposed on a Member of Parliament either before or after his/her election is to be suspended until s/he ceases to be a member; the statute of limitations does not apply during the term of membership (Article 83(3)). Investigation and prosecution of a re-elected deputy shall be subject to whether or not the Assembly lifts his/her immunity (Article 83(4)). (...)
88. Political party groups in Parliament shall not hold discussions or take decisions regarding parliamentary immunity (Article 83(5)), nor concerning parliamentary investigations (Article 100(4)). (...)
93. The GET [GRECO Evaluation Team] was concerned about the extensive list of officials who benefit from different types of immunity in Turkey. It should be noted that parliamentary immunity in the form of “inviolability” is substantially debated and challenged by civil society. The scope of parliamentary immunity has been identified as one of the problem areas in the context of corruption.
94. The circle of high ranking officials who enjoy immunity (inviolability) stricto sensu under the Constitution is limited to the President of the Republic, members of Parliament, Prime Minister and ministers who in principle are also members of Parliament. (...)
96. In the view of the GET, the regulation of the lifting of immunity of the members of Parliament (Article 83 of the Constitution and Articles 131-134 of the Regulation of the National Assembly) does not establish adequate conditions for objective considerations within the relevant parliamentary committees. A request by the prosecutor for the lifting of immunity is submitted to the Minister of Justice. After that, the request is transferred to the Office of the Prime Minister. The Office of the Prime Minister finally submits the request to the relevant parliamentary committee, which may delegate to sub-committees further consideration before the parliamentary committee brings the case to the Plenary for decision. No objective criteria have been established as regards the conditions for lifting immunity and the considerations would therefore appear to be political. Moreover, the GET was informed that the procedure may be lengthy, more than a month.
97. Since 2002, 206 requests to lift the immunity of 115 Members of Parliament had been submitted; 50 of these cases had related to abuse of function. There was no case where the Parliamentary immunity had been lifted. It seems that the established system of Parliamentary immunity and its application in practice constitutes an insuperable obstacle to the investigation, prosecution and adjudication of corruption offences. Therefore, the GET recommends to reconsider the system of immunities of members of Parliament in such a way as to establish specific and objective criteria to be applied when deciding on requests for the lifting of immunities and to ensure that decisions concerning immunity are free from political considerations and are based on the merits of the request submitted by the prosecutor. (...) »
41. Most European states recognise two categories of immunity for parliamentarians: firstly, the "non-liability" or "freedom of speech" of parliamentarians in respect of judicial proceedings over the opinions expressed and votes cast in the discharge of their parliamentary duties; secondly, their "inviolability" or "immunity in the strict sense", shielding them from all arrest, detention or prosecution without the consent of the chamber to which they belong.
42. The precise scope of the immunity varies considerably from one country to another. This results in a wide array of legal approaches to its implementation. In some States there is no such institution (The Netherlands, San-Marino). In others its scope is very limited. For example, in the United Kingdom immunity covers civil matters only and MPs enjoy no particular protection in criminal matters and are treated like any other individual. In Ireland and Norway parliamentary immunity serves to prevent MPs from being arrested during sessions or on their way to or from Parliament. It therefore affords them minimal protection.
43. That said, most of the States Parties to the Convention grant their MPs non-professional immunity from criminal prosecution during their term as MPs (Albania, Germany, Austria – if the act does not clearly fall outside the ambit of their political activities – and Cyprus, Spain, Greece, Hungary, Lithuania, Poland, Russia, Serbia, Switzerland) and/or protection against imprisonment or deprivation of liberty (arrest or detention in all those countries which provide for immunity from prosecution, as well as Belgium, France, Georgia, Portugal and Romania). In certain cases MPs are protected from bodily searches, house searches and interception of their communications (Georgia, Hungary, Italy, Romania, Switzerland). Such proceedings or measures may be executed only with the consent of the assembly to which the MP belongs, Except in Cyprus, where such decisions lie with the courts.
44. In several States the scope of immunity has been restricted, as witnessed by some recent constitutional reforms. In France, for example, since the constitutional reform of 1995, the Chamber's authorisation is no longer necessary for criminal proceedings to be brought, but only for detention, arrest and other judicial supervision measures. A similar change came about in Italy when Constitutional Law no. 3 of 29 October 1993 did away with the need for the prior authorisation of Parliament in order for criminal proceedings to be brought against an MP. In Romania, since the constitutional reform of 2003, senators may be placed under judicial investigation or criminal proceedings may be brought against them for acts not connected with votes cast or political opinions expressed in the course of their duties as senators.
45. In Germany's Bundestag the practice is generally for a new parliament to lift immunity from prosecution for all offences (with the exception of political defamation) at the start of the session. The aim of this is to protect the reputation of each Member of Parliament, by ensuring that they attract less media attention if proceedings are brought against them. In 2006 the Venice Commission published an opinion concerning a draft decision of the Albanian Parliament on the limitation of parliamentary immunity and the conditions in which authorisation to initiate investigations into corruption offences and abuse of duty may be given. That draft decision is an illustration of the current trend to limit the scope of immunity in European parliaments, at least where immunity from prosecution is concerned.
46. The duration of parliamentary immunity also varies from one country to another. Some countries extend parliamentary immunity to criminal proceedings brought prior to the MP's election (Germany, Belgium, Spain, Hungary, Italy, Portugal). In other countries, even if parliamentary authorisation is not required in order for proceedings initiated prior to the MP's election to be continued, Parliament may, of its own motion or at the request of the interested party, request the suspension of the proceedings or the waiving of restrictive measures during the MP's term of office (France, Poland, Switzerland).
47. As to the scope of parliamentary immunity ratione materiae, that is to say the acts it covers, there is a general tendency in the States Parties to the Convention for cases of flagrante delicto to be excluded. In certain constitutions flagrante delicto does not suffice to justify the lifting of parliamentary immunity; the crime must be a particularly serious one (Cyprus, Switzerland, Greece, Portugal, Turkey), but even this does not necessarily prevent Parliament from examining the matter and subsequently requesting the suspension of the proceedings or the custodial measures. In Austria, for example, even if the MP is caught in the act, subsequent legal action may require the authorisation of the Chamber concerned. In some countries the law excludes certain types of act from immunity (the Irish Constitution excludes high treason, felony and breach of the peace, for example) or the criterion may be the severity of the penalty incurred (the Portuguese Constitution excludes, in certain circumstances, deliberate offences punishable with imprisonment for over three years).
48. Parliamentary immunity may be lifted in most countries, except in those which afford very limited protection to MPs (the United Kingdom, Ireland and Norway).
49. The procedure for lifting immunity is generally the same. It is usually provided for in the Chamber's Rules of Procedure. It is set in motion by a proposal or a request for authorisation by the competent public authority (in most cases the Principal State Prosecutor), the injured party or the parliamentarian concerned. The request is transmitted to the Speaker of the Parliament, either directly or in certain cases through another authority (Minister of Justice, Prime Minister), then examined by a special or ad hoc parliamentary committee, which gives an opinion after hearing the MP concerned. It is then for the full Chamber to decide, with or without a debate, in private or in public, whether or not to lift immunity. The possibility of appealing against a decision of the Chamber to lift immunity exists in very few countries (Austria, Germany).
50. The possibility for MPs to waive their own parliamentary immunity is not widespread (Poland, Switzerland) and is sometimes limited to minor offences (summary offences in Hungary) or to specific offences (defamation, in Ireland). Under Poland's Constitution MPs have the right to consent to criminal proceedings. In Switzerland the Federal Assembly Act gives MPs the right to consent in writing to be prosecuted or arrested.
51. In most of the Contracting States no provision is made for MPs to forgo their immunity of their own free will because immunity is a privilege granted not to MPs on an individual basis but to Parliament, to guarantee its smooth operation. In France provisions governing immunity are traditionally a matter of public policy and MPs cannot renounce it. Any act that violates parliamentary immunity is considered null and void. The question of immunity must be raised by a judge. A similar approach has been adopted in the European Parliament, where renunciation of immunity has no legal effect.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111140
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF TNS S.R.O. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Ineta Ziemele;Ján Šikuta;Nona Tsotsoria
TEXT: 4. On 10 April 2006 the applicant company sued a different company for a sum of money before the Bardejov District Court. In May 2006 the applicant company paid the court fee. In July 2006 it modified its claim.
5. The District Court held the first hearing on 31 October 2006. On 6 December 2006 the defendant company submitted its observations. On 19 November 2007, 17 January 2008 and 15 April 2008 the case was adjourned at the request of the defendant’s representative.
6. The second hearing was held on 7 May 2008. In June and September 2008 the applicant company asked for the proceedings to be accelerated.
7. On 2 October 2008 the case was assigned to a different judge. A hearing which was scheduled for 22 January 2009 was adjourned at the request of the defendant’s representative. Another hearing was scheduled for 12 March 2009.
8. On 9 April 2009 the Constitutional Court dismissed the applicant company’s request about the duration of the proceedings. It held that, despite a shorter period of inactivity, there had been no significant delays in the proceedings in breach of Article 6 § 1 of the Convention and its constitutional equivalent. The decision stated that the applicant company had modified its action, that it had submitted documentary evidence in the course of the proceedings, and that it had also limited the court in scheduling of hearings.
9. Further hearings before the District Court were held on 8 June 2009 and 9 September 2009. On the latter date it delivered a judgment against which the defendant appealed on 29 October 2009.
10. The file was submitted to the Prešov Regional Court on 27 November 2009. On 9 February 2010 the court of appeal quashed the first-instance judgment. The decision was served on parties on 24 March 2010.
11. On 15 July 2010 the applicant asked for the case to be proceeded with. Hearings before the District Court were scheduled for 21 September 2010 and 13 December 2010. They were adjourned at the request of the defendant’s representative.
12. The District Court heard the parties on 5 April 2011. Subsequently the parties submitted documentary evidence. Another hearing was held on 23 June 2011. In July 2011 and September 2011 the parties submitted further observations and evidence. The District Court scheduled a hearing for 13 December 2011.
13. On 13 January 2012 the Government informed the Court that the proceedings were pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1