ITEMID: 001-84780
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PUPKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
TEXT: The applicant, Mr Anatoliy Andreyevich Pupkov, is a Russian national who was born in 1940 and lives in Georgiyevsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the period between 1982 and 1991 the applicant, then a resident of Grozny, Chechnya, deposited 7,589.17 Soviet roubles in five savings accounts with the Grozny branch of the Chechen Savings Bank, which was an integral part of the USSR Savings Bank.
In late 1994 hostilities commenced in Chechnya.
In 1999 the applicant left Chechnya because of the fighting and settled in the town of Georgiyevsk in the Stavropol Region. According to the applicant, shortly after his arrival he submitted his savings books (сберегательные книжки) to the Georgiyevsk branch of the Savings Bank of Russia and requested the latter to transfer and repay his deposits and those of his late father. The bank registered the applicant’s savings books, but refused to transfer his savings, referring to a telegram from the Central Bank of Russia which had imposed a ban on any transactions in respect of the deposits made with the Chechen Savings Bank.
On 12 July 2001 the applicant complained in writing to the central office of the Savings Bank of Russia and to its Georgiyevsk branch.
In letters of 2 August 2001 the central office and the Georgiyevsk branch of the Savings Bank informed the applicant that as a result of the events in the Chechen Republic, the Chechen Savings Bank had lost a considerable number of blank savings books and official seals, which could enable the falsification of claims for the reimbursement of deposits. In these circumstances, in 1996 the Savings Bank of Russia suspended all transactions in respect of deposits made in Chechnya, and then wound up the Chechen Savings Bank. Moreover, the Ministry of Finance did not allot funds for the reimbursement of the deposits made in Chechnya, “in the absence of guarantees that those funds would be used for specified purposes”.
Following the bank’s refusal, the applicant filed a court complaint, seeking to have his savings transferred to the Georgiyevsk branch of the Savings Bank of Russia and repaid to him.
On 11 December 2001 the Georgiyevsk Town Court rejected the applicant’s claims as unfounded. The court refused to confirm that the applicant was entitled to the reimbursement of his deposits by the Georgiyevsk branch of the Savings Bank of Russia, noting that under relevant regulations the mere fact that an individual had savings books was insufficient to confirm that a particular amount of money had been deposited in his account and that, as well as the savings books, the applicant should have supplied a document proving that his deposits had been transferred from the Chechen Savings Bank to another branch of the Savings Bank of Russia, which the applicant had failed to do.
On 23 January 2002 the Civil Section of the Stavropol Regional Court upheld the first-instance judgment on appeal, having noted that the Savings Bank of Russia had defaulted on its obligation to repay the applicant’s savings because of force majeure, namely due to the hostilities in Chechnya and the winding up of the Chechen Savings Bank. The court also noted that as soon as the Savings Bank of Russia reached agreement with the Government of Russia, it would pay back the funds of those individuals who were registered on the list of former depositors of the Chechen Savings Bank, and that it was open to the applicant to apply for registration on that list.
The applicant’s attempts to contest the above court decisions by way of supervisory review proved unsuccessful.
In their memorial of 25 September 2005 the Government informed the Court that between 21 January and 22 April 2002 the Government of the Chechen Republic within the territory of this republic, and the branches of the Savings Bank of Russia in other regions of Russia, had made a list of the former depositors of the Chechen Savings Bank who had produced their savings books (сберегательные книжки).
On 15 April 2003 the Savings Bank of Russia commenced payment of compensation to those included on the list. As provided by governmental decree no. 117 of 19 February 2003, this procedure was applied in respect of savings deposited with the Chechen Savings Bank prior to 20 June 1991.
From 1 October 2003 until 31 March 2004 the authorities made an additional list of former depositors of the Chechen Savings Bank. In the Government’s submission, “repayment of deposits to those included in the additional list would be made in the near future”.
From 2003 onwards the Russian Government adopted an annual decree which reproduced the provisions of their decree no. 117 of 19 February 2003 concerning compensation of deposits made prior to 20 June 1991 in the territory of the Chechen Republic.
According to the Government, the applicant was put on the list of the former depositors of the Chechen Savings Bank, but did not apply for the repayment of his deposits until the present moment.
In letters of 2 December 2005 and 21 February 2006 the Georgiyevsk branch of the Savings Bank of Russia informed the applicant that he could apply for his deposits, the accrued interest and compensation, upon presenting his identity documents and submitting his savings books, which would be retained by the bank after the repayment. According to the letters, the applicant would be furnished with a certificate providing the details of calculation of the sum repaid.
In August 1996 the President of the Management Board of the Savings Bank of Russia (Председатель правления Сберегательного Банка России) ordered that all operations in respect of deposits with the Chechen Savings Bank be suspended until further notice.
By virtue of decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996 the branches of the Savings Bank of Russia on the territory of the Chechen Republic were wound up and removed from the State Register of Lending Agencies. Powers of attorney issued to the heads of those branches were revoked and annulled.
By section 12 of decree no. 117 “On payment to certain categories of citizens of the Russian Federation in 2003 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations” dated 19 February 2003 the Government of Russia entitled the former depositors of the Chechen Savings Bank to compensation for deposits they had made prior to 20 June 1991. In particular, individuals who lived outside the territory of the Chechen Republic could obtain compensation in those branches of the Savings Bank which had put them on the list of former depositors of the Chechen Savings Bank.
Section 16 of governmental decree no. 258 “On payment to certain categories of citizens of the Russian Federation in 2005 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations” dated 25 April 2005 reproduces the provisions of section 12 of decree no. 117 of 19 February 2003 concerning compensation of deposits made prior to 20 June 1991 in the territory of the Chechen Republic.


ITEMID: 001-90686
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ZEMAN AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants are siblings. The first applicant, Mr Ján Zeman, is a Slovakian national who was born in 1930 and lives in Bratislava. The second applicant, Ms Božena Božiková, is a Czech national who was born in 1942 and lives in Klatovy (Czech Republic). The third applicant, Ms Emília Martykánová, was born in 1937 and died in 2004. She was a Slovakian national. The first and the second applicants as her exclusive heirs expressed the wish to continue the application in the third applicant's stead.
In August 2006 the first and second applicants appointed Mr J. Bolješik, a lawyer practising in Piešťany, to represent them in the proceedings before the Court.
The Government of the Slovak Republic (“the Government”) were represented by their successive Agents, Mrs A. Poláčková and Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings for recovery of the applicants' property
The applicants' parents owned a plot of land of approximately eight hectares which had been allocated to them in 1944. The plot was used as an orchard.
In 1958 the applicants' father joined an agricultural cooperative. He put the above plot of land at the cooperative's disposal. The cooperative thereby obtained the right of “cooperative use” in respect of the land. The owners retained the ownership title in the form of nuda proprietas.
In 1969 the applicants' father terminated his membership of the cooperative which, however, continued using the plot. Following a restructuring of cooperatives and exchanges of land between them, the plot was transferred to the Zeleneč cooperative, which later merged with the Majcichov cooperative.
In 1977 the Majcichov cooperative put the land at the disposal of the Slovak Union of Gardeners (Slovenský zväz záhradkárov – “the Union”), free of charge, for a period of ten years. The area where the plot is located was turned into garden allotments consisting of individual gardens which were placed at the disposal of members of the Union. The land has since then been used by the gardeners.
In 1987 the Majcichov cooperative and the Union concluded a contract extending the Union's right to use the plot until 2020.
After their parents' death the applicants acquired ownership of the plot by succession.
In a letter of 19 December 1990 the president of the Majcichov cooperative expressed the view that, as the cooperative had acquired the applicants' plot by exchange, the “cooperative use” regime did not apply to that land. In any event, the land could not be restored to the applicants as it was being used by gardeners in allotments. The cooperative offered to put a different plot of land at the applicants' disposal or, alternatively, to conclude a rent contract with them.
In 1993 the applicants brought an action against the Union claiming payment of rent for the use of the plot.
On 25 April 2002 the Trnava District Court asked the applicants to indicate whether they maintained their claim. In May 2002 the applicants informed the court that they wished to claim compensation for unjustified use of their land by the gardeners. The applicants submitted no further information in respect of the proceedings concerning that claim.
On 12 July 1995 the applicants sued the Union and representatives of the four allotments concerned. They claimed that the land should be returned to them.
On 14 September 1995 the Trnava District Court dismissed the action. The Bratislava Regional Court quashed that judgment and instructed the first-instance court to take further evidence. The case was transferred to the Pezinok District Court.
On 3 February 2000 the applicants provided further particulars and explained that under Article 126 of the Civil Code they sought a court ruling ordering the defendants to vacate their land.
On 5 September 2001 the Pezinok District Court dismissed the action.
In the reasons for its judgment the District Court, with reference to documentary evidence and witness statements, established that the above contract of 1987 extending the gardeners' right to use the land until the end of 2020 was void as it had not been duly signed by the parties' representatives. However, that shortcoming had not affected the cooperative's right to use the property. After the entry into force of the Land Ownership Act 1991 that right had been converted into a lease pursuant to section 22 (1). The judgment further stated that as the applicants had not terminated the lease in respect of the defendants, their application for the land to be vacated could not be granted.
The applicants appealed. They argued that the District Court had incorrectly found that the Majcichov cooperative had maintained the right of cooperative use of their plot. The applicants also alleged that they had given notice to the representatives of the gardeners' allotments concerned in 1994 and had requested them to vacate the property in 1995.
On 17 April 2002 the Bratislava Regional Court upheld the first-instance judgment. While summing up the conclusions reached by the District Court, the Regional Court stated that, in the absence of any other agreement between the applicants and the cooperative, the latter was to be considered as renting the land from the applicants with effect from the entry into force of the Land Ownership Act 1991. It had not been shown that the applicants had put an end to that legal relationship.
In its judgment the court of appeal confirmed that the provisions of the Land Ownership Act 1991 were applicable to the applicants' land. They should have sought redress in accordance with that Act, which was a lex specialis in respect of the general protection of ownership rights under Article 126 § 1 of the Civil Code. The applicants' action under the latter provision could therefore not be granted. In the judgment reference was made, inter alia, to sections 9, 11 and 22 of the Land Ownership Act 1991.
On 22 May 2002 the applicants brought an action before the Trnava District Court against the three allotments as an entity and their representatives. They claimed that the defendants should be obliged to refrain from any interference with the plaintiffs' ownership rights. On 21 March 2003 the Trnava District Court discontinued the proceedings as the applicants had failed to rectify formal shortcomings in their action, despite prior warnings and indications as to how to do so.
In the meantime, in June 2002, the applicants gave notice to the representatives of the allotments of their intention to terminate the lease of their land as from 1 October 2003.
In October 2002 the applicants lodged a complaint under Article 127 of the Constitution in respect of the above judgments of 5 September 2001 and 17 April 2002. They contended that the ordinary courts' decisions had been arbitrary as the courts had disregarded the relevant evidence. In particular, the courts had overlooked the fact that the applicants had given notice to the defendants in 1994 and 1995 and that in the above letter of 1990 the president of the Majcichov cooperative had confirmed that the latter had not acquired the right of cooperative use of the land. The applicants relied on the constitutional equivalents of Article 6 of the Convention and Article 1 of Protocol No. 1.
On 5 March 2003 the Constitutional Court declared the complaint inadmissible. It found no indication that the way in which the proceedings before the ordinary courts had been conducted and the conclusions reached by those courts were contrary to the applicants' constitutional rights in issue.
On 30 November 2006 the first and second applicants issued notice to the individual gardeners using their land, requesting them to vacate the land.
On 25 March 2008 the first and second applicants informed the Court that the gardeners were continuing to use their land.
2. Proceedings under Act 64/1997 Coll.
On 24 July 2002 the gardeners in the allotments requested that the tenancy and ownership relationship in respect of their gardens be settled by means of a land consolidation procedure under Act 64/1997 Coll. (see “Relevant domestic law” below).
On 19 April 2006 the Trnava District Land Registry rejected the request. On 18 July 2006 the Trnava Regional Land Registry upheld that decision. The authorities found that the applicants' land used by gardeners in the allotments did not fall under Act 64/1997 Coll., as the gardeners had not shown that a valid contract entitled them to use the land. In particular, the 1987 contract allowing the gardeners to continue using the land until the end of 2020 was void due to formal shortcomings. Reference was made to the Pezinok District Court's judgment of 5 September 2001.
The decision became final on 1 August 2006.
3. Administrative proceedings concerning gardeners' huts
Fifty-one gardeners in one of the allotments applied to the Trnava municipality for retrospective planning permission in respect of the huts they had built in the gardens.
The applicants objected, arguing that the gardeners had no rights of use over the land.
The municipal authority noted that the applicants' objection related to their proprietary rights in respect of the relevant plots. In accordance with section 88a of the Construction Act 1976, read in conjunction with Article 135c of the Civil Code, such issues fell to be determined by a court. For that reason the Trnava municipality, on 16 September 2004, stayed the administrative proceedings pending the outcome of the judicial proceedings which the applicants were required to bring.
On 20 December 2005, on a request lodged by the first applicant, the Trnava municipality ordered the removal of several huts in a different allotment. The authority noted that the construction of the huts in issue had been permitted only temporarily until 31 December 1987 on the condition that after that date the gardeners concerned would remove them at their own expense. On 8 and 18 May 2006 the Trnava Regional Construction Office dismissed the appeals lodged by the gardeners.
One of the gardeners sought a judicial review of the above administrative decision of 18 May 2006. The proceedings are pending before the Trnava Regional Court which, on that ground, issued an injunction preventing the decision in question from being enforced.
Under Article 126 § 1, owners have the right to protection against unjustified interference with their ownership rights by others. In particular, they are entitled to claim restitution of the property from those who hold it without any valid legal ground.
Article 135c entitles courts to determine landowners' claims against persons who have constructed a building without permission on their plots. The courts can order the removal of such buildings at the expense of their owners (paragraph 1), grant ownership of such buildings to the landowners against compensation (paragraph 2) or settle the relationship between the persons involved in a different way, in particular by granting an easement (paragraph 3).
Article 420 § 1 provides that every person is liable for any damage he or she causes by breaching an obligation resulting from law.
The Land Ownership Act 1991 entered into force on 24 June 1991.
Paragraphs 1 (a), (b) and 2 of section 22 provide that, as from the entry into force of the Act, cooperatives' right to use other persons' land is revoked and, unless a different agreement is reached with the owners, the user of the land acquires tenancy rights thereto. This lease relationship can be terminated by notice given by 1 October every year.
Under section 22 (3), as in force until 25 March 1997, in cases where the land was used by individual gardeners in an allotment, the tenancy could not be terminated before the date until which the land was originally put at the users' disposal. Unless the parties otherwise agreed, the gardeners had the right to have the tenancy extended by ten years.
Section 22 (4) entitled the owners of land used by gardeners in allotments to request, within three years from the entry into force of the Act, that the land in question be exchanged for a different plot of land owned by the State.
The principal purpose of the Act is to arrange for the return to the categories of persons referred to therein of agricultural property the ownership of which was transferred to the State or other legal persons in the circumstances specified in the Act between 25 February 1948 and 1 January 1990. Section 9 obliges the persons holding such land to return it to the original owners within sixty days of the latter's request. It also provides for a procedure in the event of refusal by the former to return the property. Under section 11 (1) (d), land on which an allotment has been established cannot be returned to the original owner.
Act 64/1997 Coll. governs the use of land within allotments and the transfer of ownership rights in respect of such land. It repealed section 22 (3) of the Land Ownership Act 1991 with effect from 26 March 1997.
Section 3 (1) of the Act provides that the users of land in allotments acquire the right to lease it as from the entry into force of the Act.
The main purpose of the Act is to permit the transfer of ownership of the land to gardeners in allotments where the majority of gardeners so request and where the owners oppose the transfer (further details concerning the relevant provisions and the domestic practice are set out in Urbárska obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 49-63 and 67-79, ECHR 2007... (extracts)).
Section 88a governs proceedings concerning the approval of buildings constructed without permission. Where the owner of such a building cannot prove that he owns the relevant plot or otherwise has title to it and where the owner of the plot disagrees with the construction being authorised, the administrative authority must refer the landowner's claim to a court and stay the proceedings under the Construction Act 1976 pending the outcome of the judicial proceedings.


ITEMID: 001-102637
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MCKEOWN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1959. He is currently detained at HMP Maghaberry, Northern Ireland.
6. At about 10 p.m. on 29 March 2000 the applicant was seen by police driving a Renault 11 car along Lake Road, Craigavon, Northern Ireland with a second person, M., in the front passenger seat. Police officers followed the car and saw items being thrown from it. These were subsequently recovered and found to be firearms. The car was stopped and searched. Two black balaclavas, dark woollen gloves and one round of ammunition were found in the car, together with a blue plastic container containing petrol.
7. The applicant's case was that he had simply given M. a lift and that he knew nothing about the articles that he had brought into the car. Following his arrest, the applicant was interviewed by police. He was shown a number of the items that had been found in the Renault car and he said that, apart from the blue plastic container, he had never seen them before. He told police that at about 9.30 p.m. on the night of his arrest, he had been asked by M. to take him to Lurgan, Northern Ireland. He claimed that he had initially refused, telling M. that every time he left the house, “the police were on to” him. He was persuaded by M., however, and they went to the car, M. carrying a bag that the applicant was unable to describe. As they were driving to Lurgan they were intercepted by police cars. The applicant asserted that he had been entrapped. He was sure that someone had sent M. to his home with the guns because he had no doubt that the police did not arrive by chance to stop his car.
8. The applicant was arraigned on 8 June 2001 and pleaded not guilty to one count of possession of firearms and ammunition with intent and one count of possessions of articles for a purpose connected with terrorism. A defence statement was served on his behalf on 12 June 2001. It contained the following:
“The defendant believes that he may have been entrapped by a person known to him working with the police either for the purpose of incriminating this defendant or his co-defendant. In consequence he requires disclosure of all information and material touching upon this issue and informing the state of knowledge of the police prior to the stopping and arrest of the defendant and all such material shall be disclosed because failure to do so would mean unfairness to the defendant and would be in breach of Article 6 of the European Convention.”
9. On 21 September 2001, the prosecution informed the applicant that it would apply ex parte for an order preventing disclosure. In non-jury trials in Northern Ireland, such an application is made to a judge other than the trial judge. That judge is designated by the Lord Chief Justice of Northern Ireland and is referred to as the “disclosure judge” (see domestic law and practice below).
10. The applicant opposed the ex parte hearing of the prosecution's application by the disclosure judge. Having heard argument from counsel for the applicant and the prosecution, inter alia on the compatibility of an ex parte hearing with Article 6 of the Convention and the relevant case-law of the European Court of Human Rights, the disclosure judge, in an ex tempore judgment, found that it was proper to hear the application ex parte. He stated that while this Court's case-law suggested that ex parte applications without any notice to the defence were problematic, the present case was an ex parte application with notice. He stated:
“... the European Court has certainly not forbidden that procedure. It doesn't seem to me that I would be empowered to overrule the [relevant domestic legislation] on the basis of the findings of the European Court up to the moment, but the Court will do if this case reaches it, maybe another matter, but I would propose to hear the [prosecution's] application at present.”
11. On 18 February 2002, the disclosure judge allowed the prosecution's application for non-disclosure. He outlined this Court's judgments in Rowe and Davis v. the United Kingdom [GC], no. 28901/95, §§6 60-62, ECHR 2000II and Jasper v. the United Kingdom [GC], no. 27052/95, 16 February 2000 and continued:
“ ... I have to consider, in the light of the defence of entrapment advanced on behalf of the accused, whether the material which is the subject of the application is such that it might be of assistance to the defence or in any way undermines any part of the prosecution case; whether in those circumstances it is necessary in the public interest to order non-disclosure and further, if disclosure is not to be provided, what steps are appropriate to protect the interests of the accused and ensure the fairness of the trial.
My reason for conducting an ex parte hearing are as follows: in order to determine whether the material is such that the public interest requires its non-disclosure I must see the material and consider the evidence and arguments submitted by the prosecutor, and I must do so in the absence of the defendants and their representatives to protect the public interest until that decision is made.
There was considerable debate in [Rowe and Davis] about the best way to deal procedurally with this situation. The majority took the view that it was important for the trial judge to see the material personally.
That is certainly true if the material is not prejudicial to the accused and where the trial is before a judge and jury the effect of the judge seeing even prejudicial material may not be inconsistent with the fairness of the trial process.
However, in the case [of] a non-jury trial it is obviously undesirable that prejudicial material which is not going to be part of the evidence in the case should be seen by the judge who will be tribunal of fact, especially if it is not disclosed to the defence.
...
No procedure exists to ensure that an assessment of the possible value to the defence of such material other than by the prosecutor or at his request the trial judge can be made in the light of the evidence at the trial. We do not have “special counsel” to carry out such an exercise.
In general the Court has to rely on the judgment and integrity of the prosecutor, who can monitor the issue of whether disclosure of such material to the trial judge may become necessary in the interests of justice.
...
The considerations I applied in considering the prosecution's application were:
1. If it is compatible with the public interest then all relevant material should be disclosed;
2. All of the material for which non-disclosure is ordered and which is not prejudicial to the defendant should be available to the trial judge;
3. The prosecutor should monitor the continuing non-disclosure of potentially prejudicial material.
In considering that matter it may be possible for the prosecutor to give some indication of the nature of the material to the defendant's advisors without disclosing that which it requires to keep secret so as to allow the latter to decide whether the material should be disclosed or not.”
He concluded:
“Having considered the matter ex parte, I have decided that in the light of the defence statement none of the material which is the subject of the application before me is such that it might reasonably be expected to undermine the case for the prosecution or to assist the accused's defence. On the evidence before me I do not anticipate any circumstances which would result in the material becoming of value to the defence. I consider that it is not in the public interest to disclose the material and have ordered accordingly. I have prepared a statement of the reasons for my decision which shall remain confidential to the prosecutor and the trial judge.”
12. When the case next came before the trial judge on 17 and 19 June 2002, the applicant and his co-accused sought an adjournment of the proceedings. The trial judge indicated that he had not received the disclosure judge's ruling or the statement of reasons and did not intend to receive anything that had not been made available to the defence. He then consulted the disclosure judge who indicated that he was content that the trial judge did not see the reasons and did not require him to do so. The trial judge then suggested that one way of proceeding would be to appoint special counsel who would be shown the material and remain throughout the trial.
13. A hearing took place on 1 August 2002 to allow the parties and counsel appearing for the Attorney-General made submissions as to whether it was appropriate either for special counsel to be appointed or for the trial judge himself to consider the undisclosed material. At that hearing, the trial judge indicated that he had by then read the ruling of the disclosure judge and the statement of reasons for his decision. The trial judge said that he considered that it was in the interests of justice that he should see the statement of reasons when the disclosure judge, in his ruling of 18 February 2002, had suggested that he should. He also stated that the statement of reasons referred to “certain items which could not in [the disclosure judge's] view prejudice the defence in any way if they were seen by me [the trial judge], but he also said that there were items which were capable of having a prejudicial effect on the trial if seen by the trial judge.” He stressed that he had not himself seen the material seen by the disclosure judge.
14. The trial judge then heard submissions from the defence, prosecution and counsel for the Attorney-General. The latter argued that the question of disclosure should be referred back to the disclosure judge for his decision. Counsel for the applicant's co-accused also suggested that the trial judge recuse himself since he had seen the statement of reasons which had not been made available to the defence. The trial judge ruled that it was not appropriate for him to recuse himself. He explained that he had reconsidered his decision not to read the statement of reasons; he had come to the view that it was important for him to read the statement of reasons in case there was something in it which would be of relevance to his decision on whether to appoint special counsel or to read the undisclosed material himself. He added:
“The fact that a judge had seen a document in a non-jury trial which has not been seen by the defence does not of necessity mean that the trial is made unfair or becomes unfair and, having seen the document and read it, I am absolutely satisfied that it does not create any reason why I should no longer act as the trial judge in this case.”
The trial judge also found that the disclosure judge was best equipped to know what procedural safeguards could be put in place as to the non-disclosed material, including whether it was appropriate to appoint special counsel, since he knew the nature of that material. He therefore referred the matter back to the disclosure judge.
15. The matter came before the disclosure judge on 13 September 2002. In an ex tempore judgment he ruled:
“There is no further safeguard that I am aware of that would be of any assistance, that one could conceive would be of any assistance at this stage, and I would not regard the case as requiring the appointment of special counsel...
The present reality is that I cannot foresee any circumstance in which the undisclosed material, that is the material undisclosed to the trial judge, would be of assistance to the defence. But it may be that the defence may advance a proposition or raise an issue that might by remote possibility make that so, and I think if the Crown concedes that that is the position then the Crown should make the matter known to the trial judge and consideration could be given then to referring back to me.”
The disclosure judge said there were two types of material involved. The first could not assist the applicant because it was adverse to him. The second related to police procedures, was general in nature and content, and did not relate directly to the applicant.
16. At the applicant's trial it was established that ten police officers, in three cars, were on patrol in the general area of Lurgan and Craigavon at the time the car was intercepted. Those police officers who had attended a briefing at Mahon Road Station said that they were told that there was intelligence that loyalist paramilitaries were in possession of a firearm in the Lurgan/Craigavon area. One crew had travelled from Belfast, and they said they did not arrive in time for the briefing but they were told by radio that loyalist paramilitaries had obtained access to weapons. It emerged during cross-examination, based on logs obtained on disclosure, that at 10 p.m. a message was sent to control to the following effect:
“...a vehicle acting suspiciously at Parkmore, VRM - DDZ 1039, blue/green Renault 11.”
The information passed by control to the three patrol cars was recorded as:
“... blue/green Renault car acting suspiciously in the Craigavon area.”
No reference was made to the registration number, or “Parkmore” in the controller's message to the patrols. The case made on behalf of the applicant at trial was that the reason that the controller did not pass to those on the ground the registration number of the Renault and information as to the place where it was last seen, was that this was an operation in which police were already in position waiting for the applicant's car to appear. All police officers to whom this suggestion was made denied it.
17. On 8 October 2002, during the cross-examination of one police officer, counsel for the applicant also argued that, in order to advance the defence of entrapment, further disclosure was required. The trial judge replied:
“Counsel for the prosecution has heard what you have got to say. If he feels that there is information that would assist you I have no doubt he will go back to [the disclosure judge] and ask him about it, but beyond that I can't go.”
18. At the conclusion of the case for the prosecution the trial judge was invited to rule that there was no case for the applicant to answer and to stay the proceedings on the grounds of entrapment. The trial judge rejected both applications. As to the former, he concluded that the circumstantial evidence was such that a jury properly directed could be satisfied, to the requisite standard of proof, that the applicant was in voluntary possession by actual or potential control of the items that were in the car when the police began their pursuit with knowledge of what was kept or controlled. There was a clear inference to be drawn that from the nature of the items that were thrown from the car and those that were found in it after it came to a halt that the applicant was in possession of the firearms in connection with terrorist activities.
As to the latter, after referring to the case of R. v. Looseley (see paragraph 33 below), the trial judge ruled:
“Although, as was suggested in cross examination the police may have been in possession of more information than was revealed at the trial I did not find any evidence to suggest that the conduct of the police could in any way affront the public conscience and I therefore declined to stay the proceedings.”
19. When the trial resumed, the applicant did not give evidence and no other evidence was called on behalf of the defence. On 12 November 2002 the applicant was convicted by the trial judge, without a jury, of two offences: possession of firearms and ammunition with intent, contrary to Article 17 of the Firearms (NI) Order 1981; and possession of articles for a purpose connected with terrorism, contrary to section 32(1) of the Northern Ireland (Emergency Provisions) Act 1996. The trial judge found that taking the circumstantial evidence and the inferences to be drawn from it and, using as support adverse inferences to be drawn from the applicant's silence when questioned by the police and his failure to give evidence, he was satisfied of the applicant's guilt of the two offences beyond reasonable doubt.
20. The applicant was sentenced to concurrent terms of imprisonment of twelve years and two years respectively. His co-accused, M., had pleaded guilty on the opening day of the trial and was sentenced to nine years' imprisonment for the offence of possession of firearms and ammunition with intent and to two years' imprisonment concurrent for the offence of having articles for a purpose connected with terrorism.
21. The applicant appealed against his conviction on both charges. On 28 October 2004, the Court of Appeal in Northern Ireland unanimously dismissed the appeal. The non-disclosed material was not considered by the Court of Appeal before it gave judgment. Instead, it considered the House of Lords ruling in R. v. H and C [2004] A.C. 134 (see paragraph 32 below) and reviewed this Court's judgments in Rowe and Davis and Jasper, both cited above; Fitt v. the United Kingdom [GC], no. 29777/96, ECHR 2000II; Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, 22 July 2003 and Dowsett v. the United Kingdom, no. 39482/98, ECHR 2003VII.
22. In respect of Edwards and Lewis, having quoted paragraphs 57-59 of the Court's judgment, the Court of Appeal observed:
“The fact specific nature of the cases is apparent from these passages. The trial judges had to deal directly with the defence of entrapment and the material produced to them may well have sounded on that issue. Moreover there was plainly prejudicial material in the evidence that the judges saw but which was denied to the defence. Not only were the defence put at a disadvantage because they could not contribute to the assessment that the judges were making but, in Edwards' case, prejudicial material was put before the judge as well.”
23. It went on to state that from the relevant case-law of this Court the following principles could be recognised:
“Full disclosure of any material held by the prosecution which weakens the prosecution case or strengthens that of the defendant should be made.
Minimum derogation from this golden rule is permissible where full adherence would create risk of serious prejudice to an important public interest.
The judge dealing with an application for non-disclosure must have a full understanding and appreciation on an ongoing basis of all the issues in the trial and in particular the nature of the defence.
The appointment of special counsel will always be exceptional. It should not be ordered unless the trial judge is satisfied that no other course will adequately meet the over-riding requirements of fairness to the defendant.”
24. In applying those principles to the applicant's case, it found that the applicant's defence of entrapment was well known to the trial judge, the prosecution, and the disclosure judge and no other issue had been identified that might sound on the question of disclosure. The disclosure judge had been unable to envisage any circumstances in which the non-disclosed material could assist the defence either by enhancing the case that was being made for the applicant or by undermining or weakening the prosecution case. Furthermore, it agreed with the disclosure judge that there had been no need for special counsel to be appointed and there was nothing to indicate that the material characterised by the disclosure judge as wholly irrelevant to the applicant's defence might have suddenly become relevant. It rejected the applicant's contention that the disclosure judge should have obtained a daily transcript of the trial and examined it for any sign of material that might have assisted the applicant's case; this was not a case where a daily transcript would have been warranted as no new line of defence ever emerged that might have prompted a reconsideration of the disclosure judge's decision that the material did not assist the applicant.
25. On the availability of the disclosure judge's statement of reasons to the trial judge, the Court of Appeal found:
“The trial judge did not read the statement of reasons given by the disclosure judge before the first hearing on the question of disclosure. The circumstances in which he considered these before the second hearing on this issue are not entirely clear. In general, where material is not to be released to a defendant, it will be inappropriate for the trial judge in a non-jury case to see it. In the present case the trial judge made clear that he had not seen any material that was adverse to the [applicant] and [counsel for the applicant] did not dispute this statement. In the particular circumstances of the present case, therefore, the trial judge's consideration of this material has not brought about any unfairness to the appellant and we do not consider that this rendered his conviction in any way unsafe.”
26. The Court of Appeal further rejected the applicant's argument that the trial judge had given insufficient weight to the entrapment theory. The Court of Appeal noted that it had been the central plank of the applicant's defence and had been thoroughly explored not only in cross-examination of the witnesses but in extensive canvassing of the various “coincidences” relied on by the applicant: the trial judge had had the advantage of hearing the witnesses give evidence about these matters and had the opportunity to assess them as they gave their explanations as to the circumstances in which they came to be involved with the applicant.
27. After dismissing the appeal, the Court of Appeal, on 19 November 2004, also refused to certify a point of law of general importance or grant leave to appeal to the House of Lords.
28. In Northern Ireland, under section 75 of the Terrorism Act 2000, trials on indictment can be conducted by so-called “Diplock courts” (courts without a jury) if the indictment is for a “scheduled offence” (one of the offences listed in Schedule 9 to the same Act). The trial then takes place before a judge sitting alone who hears all the evidence and reaches a verdict. He or she is also responsible for conducting the trial and pronouncing sentence if the defendant is found guilty. The judge must give a reasoned verdict if he convicting the defendant.
29. Disclosure in criminal cases is regulated by Part 1 of the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”) and the Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure) Rules (Northern Ireland) 1997 (“the 1997 Rules”).
Section 3 of the 1996 Act regulates primary disclosure by the prosecution. Section 3(1)(a) provides that the prosecution must disclose to the defence any material which, in the opinion of the prosecutor, might undermine the prosecution case against the accused. Primary disclosure is followed, where appropriate, by the accused providing a defence statement under section 5(5). This triggers secondary disclosure by the prosecution under section 7(2)(a) which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement.
Section 8 of the 1996 Act allows the accused to apply to the court for an order that the prosecutor provide undisclosed material. Section 9(2) requires the prosecutor to keep under review whether disclosure is required.
Sections 3(6), 7(5), 8(5) and 9(8) of the 1996 Act provide that material must not be disclosed under the foregoing provisions to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it.
Section 14A (covering procedures for trial on indictment for scheduled offences) provides that the accused may apply to the court to review its decision to order non-disclosure on grounds of public interest. Under section 15 (which applies to trials conducted before a judge and jury) where a court has made a non-disclosure order it must keep under review the question whether it is still not in the public interest to disclose material affected by its order. It must do so without the need for an application but the accused may apply to the court for a review of that question.
30. Rule 2 of the 1997 Rules regulates an application made under section 3(6), 7(5), 8(5) or 9(8) of the 1996 Act. There are three types of application under Rule 2:
(a) An application by the prosecutor to the judge, to be determined at an inter partes hearing. The accused receives notice of the application and details of the nature of the material to which the application relates.
(b) An ex parte application by the prosecutor to the judge, of which notice is given to the accused. The accused does not receive information on the nature of the material to which the application relates.
(c) An ex parte application by the prosecutor to the judge of which the accused receives no notice.
The application in the present case was of the kind described in (b) above.
Under Rule 2(5)(a), where the offence in question is a scheduled offence (and thus to be tried by a court without a jury) the application shall be heard by a judge designated by the Lord Chief Justice (known as “the disclosure judge”). Rule 3(5) provides that where an application is made under Rule 2(2) the hearing shall be ex parte and only the prosecutor shall be entitled to make representations to the court. By Rule 4(2) the court (the disclosure judge) is obliged to state reasons for making an order and a record of that statement must be made. Under Rule 9(2) where a hearing is held in private the court may specify conditions governing the keeping of the record of its statement of reasons made in pursuance of Rule 4(2).
In respect of applications by the defence made under sections 14 and 15, Rule 5 provides that they shall be inter partes and the accused and the prosecutor shall be entitled to make representations to the court. However, under Rule 5(9), the prosecution can apply to the court for leave to make representations in the absence of the accused; the court may for that purpose sit in the absence of the accused and his legal representative.
31. The relevant domestic law and practice on the appointment of special counsel (also known as special advocates) are set out in Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004X at paragraphs 43-45.
32. R. v. H and C the House of Lords considered the compatibility of applications for non-disclosure on grounds of public interest immunity. It held that procedures for dealing with such applications would not be in violation of Article 6 provided they were operated with “scrupulous attention” to certain governing principles and with continuing regard to the proper interests of the defendant. The governing principles were as follows:
“35. If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands. If the material contains information which the prosecution would prefer that the defendant did not have, on forensic as opposed to public interest grounds, that will suggest that the material is disclosable. If the disclosure test is faithfully applied, the occasions on which a judge will be obliged to recuse himself because he has been privately shown material damning to the defendant will, as the Court of Appeal envisaged (paragraphs 31 and 33(v)), be very exceptional indeed.
36. When any issue of derogation from the golden rule of full disclosure comes before it, the court must address a series of questions:
(1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail.
(2) Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below be ordered.
(3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered.
(4) If the answer to (2) and (3) is Yes, can the defendant's interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence?
This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see paragraph 22 above). In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4).
(5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure.
(6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure.
(7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced?
It is important that the answer to (6) should not be treated as a final, once-and-for-all, answer but as a provisional answer which the court must keep under review.
37. Throughout his or her consideration of any disclosure issue the trial judge must bear constantly in mind the overriding principles referred to in this opinion. In applying them, the judge should involve the defence to the maximum extent possible without disclosing that which the general interest requires to be protected but taking full account of the specific defence which is relied on. There will be very few cases indeed in which some measure of disclosure to the defence will not be possible, even if this is confined to the fact that an ex parte application is to be made. If even that information is withheld and if the material to be withheld is of significant help to the defendant, there must be a very serious question whether the prosecution should proceed, since special counsel, even if appointed, cannot then receive any instructions from the defence at all.”
33. The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney-General's Reference (no. 3 of 2000) ([2001] United Kingdom House of Lords Decisions 53). In Looseley, Lord Nicholls of Birkenhead explained (§ 1):
“My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the State do not misuse the coercive, law-enforcement functions of the courts and thereby oppress citizens of the State. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the State through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of State power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which State conduct of this nature could have are obvious. The role of the courts is to stand between the State and its citizens and make sure this does not happen.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103925
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GEORGI MARINOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 13+P1-1
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1924 and lives in Brestovitza.
6. In 1977 a plot of land measuring 1,870 square metres belonging to the applicant was expropriated for public needs in order to build an administrative and cultural centre and a road. The applicant received compensation of 3,314.52 old Bulgarian levs.
7. On 28 April 1992, after the entry into force of the 1992 Law (see paragraph 23 below), the applicant made a request to the mayor of the Rodopi Municipality in Plovdiv (“the mayor”) for the revocation of the expropriation because neither of the public works for the purposes of which it had been expropriated had commenced.
8. On 10 September 1992 the applicant paid back the compensation he had received in 1977 at the time of the expropriation.
9. In a decision of 14 September 1992 the mayor revoked the expropriation. Because of administrative omissions in that decision, on 30 August 1993 the mayor issued a new one to the same effect.
10. It appears that for a certain period of time the applicant was able to use and to benefit from the whole property or at least from part of it (see paragraphs 14 and 20 below).
11. On 7 November 1995, 11 April 1996 and 27 June 1996 the applicant requested the mayor to modify the land register in order to include the returned land. A procedure to that effect commenced in November 1995.
12. As by 11 April 1996 the mayor had not yet ordered the modification of the land register, the applicant lodged an appeal against his tacit refusal to do so.
13. On 4 October 1996 the mayor approved the modification and on 29 October the applicant's son in his capacity as owner of a neighbouring plot was officially informed about it.
14. According to the applicant on 23 June 1998 an administrative sanction was imposed on him for having used the land after the expropriation. He appealed against the sanction to the domestic courts. It appears that the appeal was granted and the sanction was quashed on an unspecified date not later than March 2002.
15. On an unspecified date the applicant found out that in the land register as modified in 1996 the area of the returned land had been reduced to 910 square metres and a note had been added indicating that the remaining 960 square metres were part of a road the construction of which had already started.
16. On an unspecified date in 1999 the applicant asked the court to declare the order of 4 October 1996 null and void as it did not comply with the restitution orders.
17. In a judgment of 2 March 2001 the Plovdiv Regional Court declared the mayor's order of 4 October 1996 null and void as not being in compliance with the orders of 14 September 1992 and 30 August 1993 and thus being in violation of paragraph 1(2) of the additional provisions of the 1992 Law (see paragraph 23 below). This judgment was not appealed against and entered into force on 18 April 2001.
18. Subsequently, on 19 November 2001, the mayor approved the modification of the land register to include the whole area of the land.
19. In 2001 the applicant initiated an action for damages under the State and Municipalities Responsibility for Damage Act (“the SMRDA”) against the Plovdiv Rodopi Municipality. Relying on the Constitution and on Article 1 of Protocol No. 1 he alleged that due to the problems with the inclusion of the whole surface of the property in the land register, he had been unable “to enter into possession, use and dispose of the returned land in the period between September 1992 and 2001”. He claimed potentially lost earnings and presented calculations from an expert based on the growing of certain types of agricultural products on the whole surface of the land for the period in question. The applicant also sought non-pecuniary damage for the anguish and suffering sustained.
20. At the hearing of 15 January 2002 the applicant's son testified that the applicant had used the whole area for a couple of years, but thereafter the municipal authorities had forbidden him to use part of it claiming that it had been allocated for the construction of a new road. He also testified that the applicant had been involved in court proceedings over that question and that because of these problems with the land the applicant had suffered anguish and frustration.
21. In a judgment of 5 April 2002 the Plovdiv District Court dismissed the claim as manifestly ill-founded, as did the Plovdiv Regional Court in a final judgment of 19 August 2004.
22. On the one hand the courts admitted that there had been certain omissions on the part of the municipal authorities and that there had been obstacles preventing the applicant from using his land. On the other hand they held that registration in the land register was not decisive for ownership of the land, nor could it affect the right to use it. Furthermore, the applicant had not presented the order of 23 June 1998 by which an administrative sanction had been imposed on him. Therefore, he had failed to prove the reasons and the extent of the alleged interference and that there had been a causal connection between the refusal to register the whole surface of the land in the land register and the damage allegedly sustained. He had also failed to prove that as a result of the actions or omissions of the municipal authorities he had sustained financial loss. The witness testimony had not clearly established what kind of anguish and suffering the applicant had experienced and there had been no medical evidence that he had suffered from a physical illness as a result of the alleged interference with his right of property. The courts did not specifically address the applicant's arguments that he could not obtain an up-to-date plan view of the property and hence to dispose of the whole of this property.
23. In 1992 the Law on the Restitution of Property Expropriated under Building Planning Legislation (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the 1992 Law”) was adopted. It provided for the restitution of expropriated property where specific conditions were met. The request for restitution had to be lodged with the mayor of the municipality, whose refusal could be appealed to the regional court. The mayor's decision was binding on all State authorities (paragraph 1(2) of the additional provisions). Owners who had received compensation for the expropriation had to return the compensation in order for the restitution order to enter into force (section 6).
24. The land register is a land survey information system which consists of registers and cadastral maps.
25. At the relevant time the adoption and modification of the land register were governed by the Common Cadastre of the Peoples Republic of Bulgaria Act of 1979 (“the CCPRBA”) and the Regulations on its implementation (“the Regulations”).
26. The CCPRBA and the Regulations provided that the land register should contain information, inter alia, about the boundaries, the area and the type of plots of land, the constructions on these plots and the ownership rights over them. Most of this information had to be mentioned in the deeds and contracts concerning immovable property, such as notary deeds, sales contracts, superficio contracts, etc. All of these deeds and contracts had to be accompanied by a plan view issued by the regional land register service (section 34 of the Regulations). The state authorities and the domestic courts were under the obligation to inform the land register officials, inter alia, of all changes in the ownership and the boundaries of private properties which had come to their knowledge. These changes had to be duly entered in the land registers and maps (sections 13 and 14 of the CCPRBA).
27. As of 1 January 2001 the CCPRBA was replaced by the Cadastre and Property Register Act (“the CPRA”). It clarified and expanded the provisions in respect of the land register. Section 49 b, in force as of 2004, provided that for the issuance of notary deeds and other acts concerning the rights over immovable property a plan view, i.e. a copy taken from the cadastral maps was necessary. The same was provided in section 2(3) of Ordinance No. 3 of 28 April 2005 (Наредба № 3 от 28.04.2005 г. за съдържанието, създаването и поддържането на кадастралната карта и кадастралните регистри), which governed the keeping of the cadastral maps and registers.
VIOLATED_ARTICLES: 13
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58907
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF GARCÍA RUIZ v. SPAIN
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Luzius Wildhaber
TEXT: 8. The applicant has the degree of Bachelor of Laws and is registered as a member of the Madrid Bar, but in fact works as a nurse. He submitted that in August 1985 one M. gave him instructions to carry out certain non-contentious (extraprocesal) work, including in particular a search to discover any encumbrances affecting the title to a piece of land which was among the property made subject to a charging order in summary foreclosure proceedings under the Mortgage Act (juicio sumario ejecutivo de la Ley Hipotecaria) brought by the X company against S. before judge no. 19 of the Madrid Court of First Instance.
On 19 June 1986 M. bought the land at auction, at a price which the applicant considered advantageous.
9. The applicant maintained that in 1986 he unsuccessfully asked his client to pay him for the administrative services, advice and technical assistance he had provided at the time of the purchase in question.
He asserted that, by a registered letter of 27 May 1989 with a prepaid form for acknowledgment of receipt, to which he received no reply, he asked M. to pay him the sum of two million five hundred thousand pesetas to cover his fees.
10. On 8 June 1989, at the applicant’s request, the Madrid Bar gave an opinion assessing the fees the applicant was entitled to claim for the services in question at three million pesetas. The Bar made it clear that its assessment was based exclusively on the information provided by the applicant.
11. On 16 June 1989 the applicant brought proceedings against M. under the taxation procedure (procedimiento de jura de cuenta) before judge no. 2 of the Madrid Court of First Instance to recover the sum he claimed. Judgment was given against the applicant on 30 June 1989 on the ground that the jura de cuenta procedure was intended only for the recovery of fees owed for services rendered by counsel in the context of judicial proceedings and that the services he had rendered had been non-contentious.
12. On 29 September 1989 the applicant brought an ordinary civil action (juicio declarativo ordinario) against M. before judge no. 12 of the Madrid Court of First Instance seeking payment of three million pesetas.
13. This claim was dismissed by a judgment of 24 May 1993. The judge took into account the statements of the defendant, who had denied the facts alleged by the applicant, and in particular that he had ever given Mr García Ruiz instructions to act for him, held that the evidence of a witness called by the applicant was not conclusive and ruled that the applicant had not proved that he had performed the services in question. He held in particular:
“The plaintiff asserts that he was instructed by the defendant (M.) to perform a number of services for him consisting in checking which court was dealing with certain proceedings and providing other information M. considered necessary to inform his decision as to whether to buy a certain property. In support of his claim he has submitted, in addition to his pleading, a series of documents, numbered 1 to 7 in the file.
In his deposition (confesión judicial) the defendant contested the truth of the facts on which the claim is based, denying that there had ever been any kind of contractual relationship between himself and the plaintiff or that he had asked the latter to perform the professional services which he claimed to have carried out according to the defendant’s instructions.
...
Be that as it may, the plaintiff admits that he did not perform the services concerned in the context of judicial proceedings... What is not in doubt is that he must prove that he actually did perform the services in issue. In that connection, no evidence has been produced in the case which might establish the truth of the allegations... Consideration of the evidence adduced suffices in itself to persuade the Court that the plaintiff has not satisfied a single one of the conditions for claiming lawyer’s fees. In the absence of evidence, the claim must be rejected, especially as the defendant denies the facts.”
14. On 4 June 1993 the applicant appealed. By a judgment of 17 March 1995, the Madrid Audiencia Provincial dismissed the appeal and upheld the impugned judgment.
In Part I of its judgment (The Facts) it stated: “[This Court] accepts and deems to be reproduced in its own decision the statement of the facts set out in the impugned judgment.”
In Part II (The Law) it ruled:
“The grounds of the impugned decision are accepted as pertinent, in so far as they are not incompatible with those set out below.
Firstly, the appeal is against the decision given by judge no. 12 of the Madrid Court of First Instance on 24 May 1993, dismissing the claim of the appellant [that is the applicant], a lawyer, against M., for three million pesetas in respect of fees owed on account of work he had done as counsel in summary foreclosure proceedings no. 843/81, brought in the Court of First Instance. M. contests the appeal on the ground that the appellant never acted in the proceedings in question, as his legal representative in that case was Mr J.A. C.L.
Secondly, the case file does not contain the slightest evidence that the appellant [the applicant] acted as counsel in case no. 843/81, or at least that, as Article 1214 of the Civil Code requires, he took steps of a procedural nature, although he may have carried out non-contentious work; the appeal must accordingly be dismissed and the impugned judgment upheld ...”
The Audiencia Provincial concluded:
“... This Court must dismiss, and hereby dismisses, the appeal lodged by [the applicant’s lawyer] against the judgment given by judge no. 12 of the Madrid Court of First Instance on 24 May 1993, which is hereby upheld...”
15. On 13 May 1995 the applicant lodged an amparo appeal with the Constitutional Court relying on the right to a fair hearing, contending that the judgment of the Audiencia Provincial had given no reply whatsoever to his arguments. In his appeal the applicant made the following points:
“(a) Indeed, [the applicant] did not act as counsel in summary foreclosure proceedings no. 843/81 before judge no. 19 of the Madrid Court of First Instance, as the impugned decision states; he acted solely as the agent of the respondent [M.], providing non-contentious services in the form of advice and assistance (as stated in the initial application) and in the proceedings brought before judge no. 19; but he never carried out any contentious work (ejercicio intraprocesal) in those proceedings ...
...
(c) ... the non-contentious work ... formed the only basis for the judicial proceedings to recover fees for services rendered ...; ... the client unjustly obtained a financial gain ... on account of the performance of the various non-contentious services which he had requested and which were in fact performed ...”
The applicant also stated his disagreement with the way the judge of the Court of First Instance had assessed and interpreted his evidence.
16. By a decision of 11 July 1995 the Constitutional Court dismissed the appeal on the ground that it had no constitutional relevance, observing that the ordinary courts had held that the applicant had not adduced sufficient evidence that he had rendered the professional services in issue and that assessment of the facts was a matter over which the trial courts had sole jurisdiction, to the exclusion of its own jurisdiction.
17. Article 120 § 3 of the Spanish Constitution is worded as follows:
“Judgments shall always contain a statement of the grounds on which they are based and be delivered in public.”
“Las sentencias serán siempre motivadas y se pronunciarán en audiencia pública.”
18. Article 359 of the Code of Civil Procedure provides:
“Judgments must be clear and precise and must address specifically the applications and other claims made in the course of the proceedings; they must find for or against the defendant and rule on all the disputed points which have been the subject of argument ...”
“Las sentencias deben ser claras, precisas y congruentes con las demandas y con las demás pretensiones deducidas oportunamente en el pleito, haciendo las declaraciones que éstas exijan, condenando o absolviendo al demandado y decidiendo todos los puntos litigiosos que hayan sido objeto del debate ...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4507
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OULD BARAR v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1974, is a citizen of Mauritania. Before the Court he is represented by Mr Peter Bergquist, a lawyer practising in Tyresö, Sweden.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Sweden on 28 or 29 July 1997, holding a tourist visa valid until 26 August 1997.
On 6 October 1997 he applied for asylum with the National Immigration Board (Statens invandrarverk), claiming that he had left his country to escape slavery. The Immigration Board held a hearing with the applicant and his lawyer in November 1997.
In written submissions and at the hearing, the applicant supplied the following information. His father, who is a slave belonging to a certain clan, and his mother, who is not a slave, are divorced. He grew up with his mother in the capital Nouakchott, went to school and later sold clothes in his own shop. His father has a privileged position with his master in the city of Kiffa and has achieved that his children, though being slaves, do not have to work as such. The applicant has to visit his father’s master - who also owns the applicant - once a year. On these occasions, the applicant has to perform some minor tasks, inter alia serving tea and going to fetch people. He has never been personally threatened by the authorities, the clan or his owner and has not been politically active against the system of slavery, as there are too many Government spies and he would be at great risk if he engaged in such activities. He obtained his passport by bribing a police officer. After his arrival in Sweden, he tore up the passport and other travel documents, as he was afraid of having to return to Mauritania. The visa to Sweden was obtained through the assistance of his uncle who is the SecretaryGeneral for the Association of National Olympic Committees of Africa. He did not apply for asylum immediately, believing that it did not matter when he applied.
The applicant further stated that, if expelled to Mauritania, he would be returned to his father’s master who might be angry with him as he has run away and who may punish him according to the master’s own laws. The Mauritanian authorities would not be able to – or would not want to – afford him protection. He also fears reprisals from his clan and the State, which supports the system of slavery in the country. Thus, he would be exposed to the risk of being tortured or killed upon return.
By a decision of 28 January 1998 the Immigration Board rejected the applicant’s request and ordered his deportation. The Board did not contest that slavery still existed in parts of Mauritania. However, it called into question the applicant’s credibility, noting that he had disposed of his passport after his arrival in Sweden and that he had waited a long time before applying for asylum. It also took into account that he had never before expressed his opinions on slavery and that he had never been threatened. Furthermore, the Board found that it had not been shown that the applicant risked being punished for not visiting his father’s master. Finally, the Board considered that the general conditions prevailing in Mauritania did not constitute a reason for granting the applicant a residence permit on humanitarian grounds.
The applicant’s appeal was rejected by the Aliens Appeals Board (Utlänningsnämnden) on 5 June 1998. The Appeals Board shared the opinion of the Immigration Board and stated, in particular, that the applicant himself had not been held in slavery prior to his leaving Mauritania but had been able to study for twelve years and later had supported himself by selling clothes in his own shop.
After the Commission had indicated to the respondent Government that it was desirable that the applicant would not be deported to Mauritania until the Commission had had an opportunity to examine the present application, the National Immigration Board, by decision of 24 July 1998, stayed the execution of the deportation order against the applicant.


ITEMID: 001-85484
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KULIŚ v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1956 and lives in Łόdź, Poland.
6.
7. On 10 June 1992 Mr Andrzej Kern, at that time the Deputy Speaker of the Sejm, notified the Regional Prosecutor that a certain Mr Gąsior and Mrs Izabela Malisiewicz-Gąsior had kidnapped his 17-year-old daughter, M.K. However, Mr Gąsior and Mrs MalisiewiczGąsior submitted that the allegation was false as M.K. had in fact run away from home and had only been accompanied by their son Maciej who had been her boyfriend for a long time. M.K. had previously run away from home on several occasions because of conflicts with her parents.
On the same day the Łódź Regional Prosecutor initiated an investigation into the allegations of kidnapping against Mr Gąsior and Mrs MalisiewiczGąsior. On 10 and 11 June 1992 the prosecutor issued a warrant authorising the search of their flat and the tapping of their telephone. They were arrested and remanded in custody. In August 1992 the case was taken over by the Poznań Regional Prosecutor who discontinued the criminal proceedings against them, finding that the allegations of kidnapping had been groundless. Disciplinary proceedings were brought against both prosecutors who had instituted the criminal proceedings.
8. On 29 June 1992 Mr A. Kern had made a statement on public television in which he said that his daughter had been kidnapped and asked for assistance in finding his child.
9. The case concerning the alleged kidnapping of M.K. received wide coverage in the media.
10. The applicant owns a publishing house named “Westa-Druk” which publishes the weekly magazine “Angora”.
11. On 16 August 1992 the applicant published in “Angora” an interview with Mr Michał Plisecki, a lawyer who at the material time represented Mr Gąsior and Mrs Izabela Malisiewicz-Gąsior in the criminal proceedings concerning the alleged kidnapping. The article was entitled: “If it had been quiet” and was in the form of questions put by a journalist and answers given by Mr M.P. The article, in so far as relevant, read as follows:
“‘A[ngora]’:-I have brought you fresh news from Łódź: the arrest warrant against [Maciej Gąsior] has been quashed, the children however have not come back home.
M.P. [Michał Plisecki]:- I do not want to – publicly – go into the details concerning the issuing and quashing of the arrest warrant. Allow me not to comment on it because I would have been forced to use very blunt language. I would refer to another issue: if it is true that [M.K.’s] parents - after an unsuccessful attempt to place her in a psychiatric clinic –left her alone, under the care of her grandmother somewhere in the countryside, then should I – as a parent – be shocked by such behaviour? There is no other conclusion from the above fact: they simply do not love her. It is not that they do not understand her, because this is proved by their behaviour as a whole, but that the wish to separate [M.K.] from the world is in the interests of those people. Mr Kern’s statement that he suspected that his daughter had been spying on him while she was dating Maciej and in particular the statement by the mother of [M.K.] that her daughter had been serving as a mattress for Maciej – this is terrifying! That was probably the reason why the Member of Parliament Mr Kołodziejczyk, who represents the interests of all citizens, decided to apply to the family court to solve the tragic problem of [M.K.] and the Kern family. If I may give my private opinion, I also believe that one should think over how to arrange [M.K.’s] future life.
(...)
‘A’:- So, if it was not for journalists, it would have been different? Maybe quieter?
M.P. If it had been quieter, then from my point of view, and after Mr Kern’s having publicised the case in a certain context, I do not exclude the possibility that my client [Mrs Malisiewicz-Gąsior] would still have been in the detention centre. I do not exclude the possibility that Mr Gąsior would have been arrested too. The fact that my clients are free is due to the pressure of public opinion.
(...)
‘A’:- You have said: ‘M.K. ran away from home’. But it has been said that it was an abduction or kidnapping.
M.P. The prosecutor and his deputy know that [M.K.] ran away from home. It has been proved by witnesses (...) [M.K.] had asked Maciej to accompany her and that is what happened. This is not a crime!
‘A’:- The Helsinki Committee [for Human Rights], the Ombudsman, the President...
M.P. ... let me add: the Political Group Porozumienie Centrum. Recently the Group made an appeal for assistance for Mr Kern - turning to the Ministers of Justice and of Internal Affairs – in the private matter of Mr Kern. I believe that since Mr Kern has abused power and has caused such unlawfulness and it has been supported by this Political Group, it means that Porozumienie Centrum supports these kinds of methods involving aggressive behaviour.
‘A’: -You have said: Mr Kern has abused power. Is it a question or a statement?
M.P.:-He has obviously abused power because as the Speaker of the Sejm he had access to the media and gave false information; the fact that he is a liar I can prove – if necessary – in court. I authorise you to print this text. If Mr Kern says that he is not a liar, I will prove the contrary in court!
‘A’:-What do you think about the fact that the Member of Parliament Mr Kołodziejczyk applied to the Łódź District Court?
M.P.:- It is for the court to decide, in every family case, with which parent the child should stay. In such cases both the parents and the child often undergo psychological and psychiatric examination – obviously upon a decision of a court. This is a typical case; the court is to decide on the family matter of Mr and Mrs Kern. Therefore, both the parents and [M.K.] should undergo the relevant examination. This is usual, routine procedure. That, in turn, proves how diligently Mr Kołodziejczyk approached this case. [M.K.] had turned to him for help, placed trust in him. In consequence he contacted, as I know, many people, me included, but I could not dispel his doubts. I then turned (sic!) [he turned] to specialists – psychologists. He was told by them that before they could make any decision they should talk with both the child and the parents. Then, very tactfully, he asked the Speaker [of the Sejm] Mr Chrzanowski to pass these suggestions to Mr Kern. Only after Mr Kern had refused, did Mr Kołodziejczyk do what any honest and respectable person would have done: he informed a court that in the Kern family bad things were happening. It is a lie that Mr Kołodziejczyk ordered the examination by specialists. He cannot order it! He only asked for appropriate action to be undertaken. (...)”
12. Subsequently, and in connection with the above interview, disciplinary proceedings were initiated against Mr Michał Plisecki by the local Bar Council. On 24 June 1995 the High Disciplinary Court (Wyższy Sąd Dyscyplinarny) found that Mr Michał Plisecki had breached the rules of professional conduct and reprimanded him. The court reiterated that the lawyers between themselves (Mr Plisecki, Mr Kern and his wife were all members of the Bar) should follow the rules of politeness and friendliness. The court found that Mr Plisecki had breached those rules and had failed to express his critics in a restraint manner.
13. On 8 August 1995 Mr Kern, his wife and his daughter M.K., (“the plaintiffs”) lodged against the applicant’s publishing house “Westa-Druk” a civil claim for protection of their personal rights. They maintained that the press had played a major role in the case involving their family as they “presented the facts and judgments tendentiously, causing de facto damage to the plaintiffs.” The plaintiffs further sought an award of PLN 28,000 in compensation and an order requiring the defendant to publish the following apologies:
“We apologise to the Deputy Speaker of the Sejm, Mr A. Kern, his wife Mrs Zofia Pstrągowska-Kern and his daughter [M.K.] for grossly violating their personal rights by having published the article ‘If it had been quiet’, in Angora (...), in particular, by uncritically quoting the totally irresponsible statements of Mr Michał Plisecki in which he:
- said of A. Kern that he ‘had obviously abused power’ and ‘caused unlawfulness’ in connection with the investigation conducted by the Łódź Regional Prosecutor into the alleged kidnapping of his daughter,
- said that Mr Kern had been providing the media with untrue information and called him a liar,
- imputed to Mr and Mrs Kern the wish to place their daughter in a psychiatric clinic, called their parenting skills into question and stated without any reason that the parents and [MK] should ‘undergo psychiatric and psychological examination.’
We express our regret over the harm done to the injured party”.
14. On 15 May 1998 the Łódź Regional Court (Sąd Wojewódzki) gave judgment for the plaintiffs. The court ordered the applicant to publish apologies as sought in the statement of claim and awarded the plaintiffs compensation in part, i.e. PLN 8,500. The court stated, inter alia:
“...One should agree with [the applicant] that, being the publisher, he had the right to inform the readers about important circumstances concerning [A. Kern] who at the material time held one of the highest positions in the State. Therefore, publishing such information was not illegal despite the fact that it affected the plaintiffs’ personal rights that are protected by law. The article, however, includes not only information but also statements that damaged their reputation; i.e. their good name. The statement that Mr and Mrs Kern had made an unsuccessful attempt to place their daughter in a psychiatric clinic, that they do not understand and love her and that her separation from the world is in her interest, disparaged their parenting skills, and questioned their moral values.
The information that the family should have been examined by psychologists and psychiatrists had also harmed them in the eyes of others.
It concerns in particular the parents of Ms [M.K.] who at that time held important positions and the state of their mental health should not have been an object of public discussion. Finally, calling Mr Kern a liar and stating that he had abused power, obviously harmed his good name and exposed him to the loss of trust of his voters and of the leaders of the party of which he was a member. Therefore, the [applicant’s] actions were ... illegal because they breached the good name and reputation of the plaintiffs.
The court did not agree with the [applicant’s] opinion that [since] he was not the author of the quoted statements, he was not obliged to check the truthfulness of the information included in the interview with Michał Plisecki...”
15. On 27 July 1998 the applicant lodged an appeal with the Łódź Court of Appeal. He alleged, inter alia, that the court had infringed his freedom of expression in breach of Article 10 of the Convention, as it had overstepped the margin afforded to it and violated the principle of proportionality between the legitimate aim pursued and the measures applied. The interference with his right was particularly striking as the case concerned a politician who should have been more tolerant of criticism. The applicant further argued that Mr Kern himself had made public information concerning his private life by giving statements concerning the alleged kidnapping of his daughter in the television and the press.
16. Mr Michał Plisecki, who joined the proceedings as an intervener (interwenient uboczny), also lodged an appeal.
17. On 26 January 1999 the Łódź Court of Appeal found that the applicant had sullied the good name of the plaintiffs. It amended the judgment in so far as the text of the apology to be published was concerned and increased the sum to be paid by the applicant to all plaintiffs by way of costs and expenses to PLN 3,316. It upheld the remainder of the judgment. The applicant was to publish the following apology:
“We apologise to Mr Kern, his wife Mrs Zofia Pstrągowska-Kern and daughter [M.K]. for breaching their personal rights by the publication entitled «if it had been quiet» in particular by citing the statements made by the lawyer M.P. in which he referred to the plaintiffs’ parenting skills and gave his opinion as to their family life, and called the first plaintiff a liar.”
18. The appellate court stated:
“...The Regional Court based its judgment on the following findings:
In 1992 a strong conflict erupted between [M.K.] and her parents on the ground of her contacts with Maciej. [M.K.] regarded Izabela Malisiewicz-Gąsior as a person friendly to her and a moral authority. That influenced the loosening of her relationship with her parents. Finally, in June 1992 [M.K.] left with Maciej. She did not inform her parents of her whereabouts and did not contact them.
The plaintiff, Mr Kern, in a television address made an appeal for help in finding his daughter; he also informed the Łódź District Prosecutor that a crime has been committed under Article 188 of the Criminal Code.
The District Prosecutor instituted proceedings on charges of kidnapping and false imprisonment of M.K. In the course of these proceedings Mrs Malisiewicz –Gąsior was arrested and the apartment and house of Gąsior’s family was searched. The defence counsel of Mrs Malisiewicz-Gąsior was Mr M.P.”
19. The Court of Appeal found that the statement that Mr Kern had abused power was within the justifiable bounds of criticism since public opinion was particularly sensitive to all aspects of abuse of power, and the opinion about Mr Kern was given by a professional i.e. a lawyer; therefore, it did not require verification by the publisher. The allegation of abuse of power was also justified given the extraordinary actions undertaken by Mr Kern in a private matter. Following the case-law of the European Court relating to Article 10 of the Convention, a politician should show more tolerance when exposed to criticism than private persons. Then the court stated as follows:
“It is a different matter, however, with regard to the allegation that Mr Kern was a liar. It is obvious that this description does not have the character of a legal opinion. What is more, the context of the statement does not clarify in relation to what case the plaintiff was alleged to have lied. It was thus a generality suggesting regular untruthfulness on the part of the plaintiff. The explanations for this statement provided by Mr Michał Plisecki later in the course of trial cannot be of particular importance since the published text, and in the form in which it reached the readers, did not include them. This description should then be considered as an ordinary and unjustified epithet [epitet]. In this case the publisher cannot be discharged of the responsibility for besmirching the plaintiff’s good name either on the ground that the author of the statement was a lawyer, because he had not spoken as a professional, or because of the fact that publication was in the form of an interview as, unlike radio or television interviews, it was not a live broadcast and the publisher had the means, by acting with due diligence, to prevent the breach of the plaintiff’s personal rights by this statement. Moreover, it cannot be inferred from the fact that the plaintiff held a public function, so that he agreed there should be a wider limit of permissible criticism of him, or from the fact that he himself made a public appeal for help in finding his daughter, that he had agreed to publication of all free opinions and comments on this subject, including those breaching his personal rights. Given the above described character of the statement, it should be regarded as an evaluation (ocenna) that cannot be verified as true or false and in any case cannot [be seen] as a negative assessment of the plaintiff’s actions within the meaning of Article 41 of the Press Law. In this case the publisher is not protected by Article 10 of the Convention as paragraph 2 of this Article limits the right of freedom of expression when protecting, inter alia, the reputation of others.
For these reasons the Court of Appeal considered the appeals of the [applicant] and the intervener manifestly ill-founded.
Both appeals are equally unjustified in what they say about the judgment referring to a breach of the first plaintiff’s personal rights by statements about his family life.
Neither the fact that the first plaintiff had himself introduced the events of his private life into the public sphere by making the address for help in finding his daughter (even if one can consider such an appeal as agreement to publication of information from a private sphere within the meaning of Article 14(6) of the Press Law) nor the fact that as a person holding a public function he was a subject of particular interest to the press authorised the publisher to breach his personal rights by putting into question his mental health and parenting skills.
One cannot infer that the plaintiff waived his right to legal protection by the fact that he had subjected himself to public comments on his family matters. It should be underlined that information concerning family life, and even unfavourable comment, does not have to breach personal rights. In this publication the limits of fair criticism and cultural expression had been overstepped. As with the allegation that the first plaintiff was a liar, the publisher is not protected by the fact that he had been quoting the statements of a lawyer who was obliged to exercise strict control over what he said, because matters concerning the family life of the first plaintiff did not have the nature of a legal opinion and the interview itself was not broadcast “live”.
Moreover, commenting in this manner on the plaintiff’s family life was not covered by a socially justified interest and did not concern the political activity of the plaintiff.
In addition it should be said that entering into issues concerning the family sphere, in particular the relationship between parents [and children], if only because of the impossibility to verify the assessments made in this respect, is always unlawful, even if the information given is true (see judgment of the Supreme Court, 11/03/1986).”
20. The applicant and the intervener each lodged cassation appeals with the Supreme Court (Sąd Najwyższy).
21. On 11 October 2001 the Supreme Court dismissed the cassation appeals and ordered the applicant to pay Mr Kern PLN 3,800 for costs and expenses. It agreed with the assessment of the lower courts that in the present case the interference with the freedom of press was justified by the need to protect the reputation of the plaintiffs. The Supreme Court also dismissed the applicant’s arguments that his intention was to report on a case that had shocked the majority of public opinion. The court was of the opinion that publishing an article in which the lawyer of the other party subjectively analysed very delicate family matters and offered categorical judgments on their causes, was not the right way to protect a justified public interest.
22. It appears that subsequently the judgment was enforced in so far as the payment of compensation was concerned. As regards the publishing of the apologies, the enforcement proceedings are pending.
23. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as in particular health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
24. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator abandon the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.
25. Article 14 (6) of the Press Act of 26 January 1984 provides as follows:
“Information and data concerning the private sphere of life of an interested person shall not be published, unless they are connected directly with the public activity of that person.”
Article 38 (1) states:
“Civil responsibility for infringement of the law caused by the publication of press material is accepted by the author, editor or other person who had the material published; this does not exclude the responsibility of the publisher. In respect of financial liability the said persons take joint responsibility.”
Article 40 of the Press Act provides:
“In the event of an intended infringement of the personal rights of an individual by the publication of the press materials, and in particular in the event of an infringement of Article 14 (6), a court may grant the injured person compensation for damage suffered.”
VIOLATED_ARTICLES: 10