ITEMID: 001-5878
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SAWONIUK v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Polish national, born in 1921 and currently serving a sentence of life imprisonment in HM Prison Gartree. He is represented before the Court by Mr M. Lee, a solicitor practising in London.
The applicant was born in 1921 in Domachevo in Belarus.
Until 1939, Domachevo was in Poland. The Germans briefly occupied the region before ceding it to Russia. In June 1941, the Germans invaded again and occupied Domachevo until July 1944. Domachevo had an estimated population in 1939 to 1941 of between 3,000 and 5,000 of which a significant majority were Jewish.
The applicant joined the local police force established by the Germans soon after the beginning of the occupation, ultimately becoming local commander of the force. During the period of the occupation, the Nazi policy of genocide against the Jewish members of the population was implemented. According to German records, on 19 to 20 September 1942, 2,900 Jewish people were massacred in Domachevo. This was a combined operation carried out by Germans and local police. Searching for and killing Jews who escaped such operations were part of the tasks of the local police.
The applicant left the region in or about July 1944 when the Germans began to retreat and joined the Polish army in or about December 1944. He arrived in the United Kingdom in about 1946 and has lived there ever since.
The War Crimes Act 1991 provided that proceedings for murder could be brought against a person irrespective of the nationality of the person in respect of offences committed during the Second World War (see Relevant Domestic Law and Practice below).
On 1 and 3 April 1996, the applicant was interviewed by the British police concerning his activities in Domachevo during the German occupation. In his statements, he denied that he had been a member of the local police; that there had ever been a locally recruited police force there; that there had only been unarmed lookout men, not in uniform, keeping watch for Russian partisans; that there had been no ghetto in Dormachevo and no restriction of movement had been imposed on the Jewish population. He also denied that he had been married in Domachevo. He said that he had been in Germany on forced labour at the time under investigation.
The applicant was charged on an indictment with four counts of murder:
Count 1: that between 19 and 27 September 1942 he had murdered a Jewess in Domachevo in circumstances constituting a violation of the laws and customs of war;
Count 2: that between 19 September and 4 October 1942 he had murdered a Jew named Schlemko in Domachevo in circumstances constituting a violation of the laws and customs of war;
Count 3: that between 19 and 4 October 1942 he had murdered a Jewess (other than that specified in Count 1) in Domachevo in circumstances constituting a violation of the laws and customs of war;
Count 4: that between 19 and 31 December 1942 he had murdered a Jew known as Mir Barlas in Domachevo in circumstances constituting a violation of the laws and customs of war.
In the trial which took place between 8 February and 1 April 1999, before Mr Justice Potts and a jury, the applicant was represented by senior and junior counsel and solicitors.
In essence, the prosecution case was that the applicant had been a willing volunteer in the local police force and engaged in the search and kill operation carried out after the massacre of the Jewish inhabitants of the ghetto in Domachevo on 19-20 September 1942. Witnesses for the prosecution alleged that they had seen the applicant engaged in acts of violence against Jewish persons and that he had been involved in executions. The defence case was that, although the applicant now admitted being a policeman and of being in charge at some point, he had been absent from the village when the principal massacre occurred and had taken no part in any search or kill activities afterwards. He alleged that he had on the contrary been a friend of the Jews in the village and that the witnesses who made allegations about his alleged participation in war crimes were liars in league with the KGB and Scotland Yard, or motivated to obtain indiscriminate vengeance because of relatives lost or killed during the war.
Before the commencement of the proceedings, the defence made a number of applications: that the trial should be stayed as an abuse on the basis that due inter alia to the lapse of time since events the applicant could not obtain a fair trial. The application was refused by the trial judge who considered that it was entirely speculative as to whether the unavailability of witnesses was a detriment or a bonus, that the evidence of the eye-witnesses called by the prosecution could be properly and rigorously tested within the confines of the trial process, and that any points which the defence might have about the reliability of the evidence could be fairly accommodated within the trial process. The defence also made an application that the evidence of two witnesses, Ivan Baglay and Evgeny Melianuk, be excluded as inadmissible. On 8 February 1999, the judge ruled that the evidence of both witnesses was relevant and admissible and, on 26 February 1999, that it should go before the jury.
At the close of the prosecution case, the judge ruled that there was insufficient evidence as a matter of law to support a conviction on counts 2 and 4 and that the applicant should be acquitted. He ruled that the evidence going to those two counts should be withdrawn from the jury but that evidence concerning other matters given by two witnesses (Ben Zion Blustein and Ivan Stepaniuk) who had testified on those counts should remain with the jury.
During the trial the judge and jury visited the location at Domachevo, including the site in a forest where one witness, Fedor Zan, claimed to have seen the applicant execute a number of Jewish women, including the victim specified in Count 3.
During the evidence of a police officer, counsel for the applicant posed questions concerning the applicant’s claim that he had served in the Polish Free Army and reference was made to Polish military records which were never formally proved but which by agreement were before the jury. The police officer also made reference to a missing persons document, obtained from German records, which referred to the applicant as going missing from a Waffen SS unit in late November 1944. This document had not been put in evidence. The judge directed the jury that hearsay was not evidence, that the document to which the officer had referred had not been prepared by him and that, accordingly, the document was not evidence.
When the applicant gave evidence, he referred to his service in the Polish army, again with reference to the Polish records, and stated that he had in fact left Domachevo at the end of 1943, not during 1944 as had been part of a formal admission by his legal representatives. During cross-examination, he appeared to claim that he had joined the Polish brigade in early 1944. Prosecution counsel asked him whether he had ever served in the German army and he denied it very emphatically. The judge ruled that it was permissible to put to him questions concerning the Polish military records and permitted prosecution counsel to ask the applicant to look at the missing persons document and put questions on that document. The applicant denied that he had ever joined the Waffen SS, but confirmed that it contained an accurate record of his personal details. He suggested that it had been fabricated by the police officers in the case. During this questioning, the applicant became highly emotional and lost his composure.
The prosecution made an application to the judge to call evidence to prove the provenance of the missing persons document in order to rebut the allegation of fabrication. On 24 March 1999, the judge refused the application. He stated that the prosecution accepted that the document was not evidence that the applicant was a member of the Waffen SS and that the state of the evidence on that point was that emanating from the applicant, namely, his denial. He considered that at this late stage of the trial any evidence as to the origin of the document might in those circumstances have a disproportionate effect on the consideration of jury of the evidence as a whole.
On 25 March 1999, before the closing speeches were due to begin and a long adjournment over a weekend, the judge after consulting counsel decided to withdraw the applicant’s bail. He stated that this was due to two concerns: his concern for the ordinary continuance of the trial, as that concept was defined in the Bail Act as failing to surrender to custody, and the welfare of the applicant. He took note of the applicant’s advanced age, his problems of health, the fact that he lived alone at an address known to the press and that, if bail was withdrawn, he would be held in the hospital wing of Belmarsh prison with medical attention and a carer to oversee his welfare. He stated:
“I have come to the conclusion that, against the whole background of the case, and bearing in mind particularly the manner in which the defendant gave his evidence over the last two or three days, that the defendant comes within the terms of paragraph (3) ... that bail should be withdrawn for his own protection and that the arrangements to which I have referred would ensure that he is properly looked after until the conclusion of this trial.
I emphasise that in taking this course my concern is for the defendant’s own protection.”
An application was made to the High Court to review bail on 26 March 1999. It was refused. The applicant states that the High Court judge took the view that he should not interfere with the decision given the stage reached in the proceedings, i.e. the closing speeches.
On 29 March 1999, defence counsel made representations, inter alia, that the arrangements made for the applicant in prison had not reflected those referred to by the trial judge. He had allegedly been held in a psychiatric ward with disturbed prisoners instead of a room of his own, had been subjected to strip searches and had passed a very distressing weekend. On hearing re-assurances from defence counsel that arrangements would be made for transporting the applicant to and from the court room and for ensuring his welfare in his own home, and having regard to the shortness of the overnight adjournment of the trial, the trial judge reinstated bail.
On 1 April 1999, the jury convicted the applicant of counts 1 and 3. The applicant was sentenced to a mandatory term of life imprisonment. The trial judge recommended that the applicant “never see the light of day”. The Lord Chief Justice recommended a tariff (the period to be served for retribution and deterrence) of five years. The Home Secretary has yet to fix the tariff.
The applicant appealed against conviction to the Court of Appeal. He lodged grounds which, inter alia, alleged that the judge had erred in failing to stay the proceedings and in admitting the evidence of Ivan Baglay and Evgeny Melianuk, that the judge failed to direct the jury on how to approach evidence which related to similar facts or other crimes not the subject of the indictment, that the judge had erred in not discharging the jury on the basis that they had heard evidence relating to counts 2 and 4 which had been withdrawn and that the verdict of the jury was unsafe by reason of the cross-examination of the applicant on a Waffen SS document which was not evidence in the case and during which his loss of composure would have reflected on his credit.
In its judgment of 10 February 2000, the Court of Appeal rejected the applicant’s appeal. It summarised the evidence on counts one and three as follows:
“The core of the prosecution case on count one was contained in the evidence of Alexander Baglay. On the day of the massacre, he was at home in Borisy a very small village on the outskirts of Domachevo. He heard firing from the direction of the massacre site. Two or three days later, with another boy about three years older (and thus about sixteen) he went to the deserted ghetto searching for clothes and shoes. While there the boys were caught by the police and taken to the police station. From the police station the [applicant] took both boys to a site at the eastern site of the ghetto... There Alexander Baglay saw two policemen whose names he could not remember guarding two Jewish men and a Jewish woman. They were standing by a recently dug hole. The [applicant] told the three victims to undress, which they did, reluctantly on the part of the woman. ... When they were undressed the victims were lined up and shot by the [applicant] with a pistol... He pushed them into the pit with his knee as they fell. The boys then buried the bodies in the pit with the spades which were on the site. They were offered the victims’ clothes but declined... Alexander Baglay said that his companion, Valodia Melianuk, had died but gave a date for his death which was shown to be inaccurate. He had not mentioned this incident to the NKVD when questioned immediately after the war. His first account of the shooting was given to the British police in 1996.
The core of the prosecution case on count three was contained in the evidence of Fedor Zan. He lived in Borisy and worked in Brest travelling to and fro by train via ... Domachevo. About two or three weeks after the massacre in September 1942 he was returning in the evening from Brest. On this occasion he got off the train at Kobelka where his sister lived because he had something to deliver. He went to her house... and was then returning through the woods to his home. He said that as he was walking through the woods he heard crying and shouting. He walked in the direction of the noise to see what was happening. He saw a number of Jewish women who were getting undressed. They were told to place their clothes in a pile and then turn to face a pit. These directions, he said, were given by the [applicant]. He hid himself in the bushes and observed what happened. The [applicant] had a submachine gun. The women turned to face the pit and the [applicant] mowed them down with the machine gun. They fell into the pit. There were, according to him, no policemen present other than the applicant and no Germans. He estimated that there were no fewer than 15 Jewish women, and no men, but he recognised none of them. He was a considerable distance away (during the trial the distance was calculated to be 127 or 128 paces) and watched for 4-5 minutes. Dusk was beginning to gather, but Mr Zan’s evidence was that the sun was still in the sky. He said that he recognised the [applicant] ‘by his size and by his face. He was famous by that time.’ Mr Zan first described this incident to British police in February 1996.”
As regards the judge’s failure to stay the proceedings for abuse, the Court of Appeal found that he had correctly applied his discretion on the basis that the reliability of the evidence could be properly and fairly tested in the trial and subject to his powers of direction as trial judge and that it had not been established that the continuance of the proceedings would deny the applicant a fair trial.
As regards the allegations that the judge should have excluded evidence of witnesses about alleged assaults and the taking away of Jewish families by the applicant which were not on the indictment, it held that this evidence was relevant to prove that the applicant was a policeman involved in the search and kill operation and as establishing the context and circumstances in which the offences were said to have been committed. The evidence had not been relevant as “similar fact” evidence and the judge had not been required to warn the jury that these matters could not be relied on to prove a propensity to kill Jewish victims. The judge had properly explained to the jury the basis on which to consider the evidence and they had not been led to infer that the mere fact that the applicant was implicated in other acts of violence against the Jewish population meant he was more likely to have committed the two specific offences of murder.
The Court of Appeal found no basis to fault the judge’s approach to the evidence concerning Mr Zan’s identification of the applicant. Nor had he erred in allowing evidence concerning the applicant’s role as a policeman during the period and during the search and kill operation to remain before the jury even after the two counts on which those witnesses had principally given evidence had been withdrawn. As regards the cross-examination on the basis of the missing records document, it considered that the judge had given a clear direction to the jury that this document could not constitute evidence that he was a member of the Waffen SS and that it could not contradict his assertion that he was never a member of that organisation. They were not persuaded that the questioning had overstepped the proper limits, pointing out that this line of cross-examination had been inevitable once the applicant had relied on the Polish army records to give a favourable impression through his service with the Allies.
The judgment concluded:
“Given the unique circumstances of this case and the grave consequences of conviction to the appellant, we have considered with care whether there is any more general ground upon which these convictions could be regarded as unsafe. For reasons already given, we conclude that the jury was in a very advantageous position having seen the site and heard the evidence, to form a reliable judgment on count three. On count one we remind ourselves that the conviction rested very largely on the evidence of a witness who was, if his evidence was reliable, standing within feet of the [applicant] when this murder was committed. It was not a case of an identification made 56 years after the event but one of contemporaneous recognition to which the witness deposed after that lapse of time. It is not easy to imagine any event, which if witnessed would impress itself more indelibly on the mind of a 13 year old boy. The jury had to consider whether the witness was honest and reliable. They concluded that he was both. We see no reason to question the soundness of that judgment.”
The Court of Appeal refused leave of appeal to the House of Lords but certified two points of law of general importance, namely:
1. Whether evidence of other criminal activity, not charged in the indictment, allegedly committed by the defendant is admissible to prove that the defendant is one of a group of people, one of whom must have committed the offence charged or under a broader basis, by which the jury ought to have had evidence of the whole background to the offence in order to enable them to see the offences charged in context.
2. If such evidence was admissible, must the jury be instructed in terms that they must not treat the evidence as proof of propensity.
On 15 June 2000, the House of Lords refused the petition for leave to appeal. No reasons were given.
Section 1 of the War Crimes Act 1991 provides:
“(1) ... proceedings for murder, manslaughter or culpable homicide may be brought against a person in the United Kingdom irrespective of his nationality at the time of the alleged offence if that offence –
(a) was committed during the period beginning 1st September 1939 and ending with 5th June 1945 in a place which at the time was part of Germany or under German occupation; and
(b) constituted a violation of the laws and customs of war.
(2) No such proceedings shall ... be brought against any person unless he was on 8th March 1990, or has subsequently become, a British citizen or resident in the United Kingdom, the Isle of Man or any of the Channel Islands.”
According to the Bail Act 1976, Schedule 1, defendants accused of imprisonable offences are subject to the following provisions concerning detention prior to conviction:
“Exceptions to right to bail
2. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would –
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
3. The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.”
Section 1 of the Murder (Abolition of the Death Penalty) Act 1965 provides for the mandatory imposition of a sentence of life imprisonment automatically upon conviction for an offence of murder. A person convicted of other serious offences (e.g. manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside.
Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and generally will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, R. v. the Secretary of State for the Home Department, ex parte T. and V., 1998 AC 407, at pp. 492G-493A).
Pursuant to section 34 of the Criminal Justice Act 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public. A different regime, however, applies under the 1991 Act to persons serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard’s, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).


ITEMID: 001-111626
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF CIESIELCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1957 and lives in Tarnow.
6. On 16 July 2003 a television station, S.Tar TV Malopolska Telewizja Kablowa (hereafter “S.Tar TV”), and two individuals, Mr G. J. and Mr J. R., lodged with the Tarnow District Court (Sąd Rejonowy) a private bill of indictment against the applicant, charging him with several counts of defamation.
7. On 24 May 2004 the Tarnow District Court found the applicant guilty of five offences of defamation under Article 212 of the Criminal Code and acquitted him of the remaining charges. The applicant was ordered to pay a fine of 2,000 Polish zlotys (PLN), PLN 500 to a charity, and to reimburse the private prosecutors PLN 1,000 for the costs of the proceedings.
8. The court found him guilty of damaging the good name of S.Tar TV in that, between April 2002 and July 2003, through a means of mass communication, namely the Internet portal www.uczciwosc.org.pl, and by sending letters to the Tarnow Regional Prosecutor, the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji), the Minister of Justice, Bishop W. Sworc, and priests from several Tarnow parishes, he had made untruthful statements, in particular that S.Tar TV had been broadcasting pornographic material.
9. Secondly, the applicant was found guilty of disseminating, on the above-mentioned Internet site, inaccurate information about one of the journalists working for S.Tar TV, Mr G. J., which had debased the victim in the eyes of the public and had undermined public confidence in him: public confidence was necessary for his profession. The court referred to statements published by the applicant to the effect that the victim had “lacked objectivity and closely collaborated with the incompetent President of Tarnow, Mr M. Bień, and his political godfather, the Civic Platform’s Member of Parliament, Mr A. Grad.”
10. Thirdly, the applicant was convicted of disseminating, through the same Internet site, information to the effect that Mr J. R., another journalist employed by S.Tar TV, had provided viewers with inaccurate information, implying that the applicant had been pushing for the dismissal of the Tarnow President.
11. The fourth charge on which the applicant was convicted consisted of making statements during a session of the Tarnow Municipal Council, in full knowledge that the session was being broadcast by S.Tar TV, which were inaccurate and damaging to the station’s good name. The statements in question included allegations that the station had been presenting one-sided information on city issues and had received money from the local authorities to present information in support of the latter’s “official line”.
12. Finally, the applicant was found guilty of disseminating inaccurate information aimed at debasing Mr G. J. and undermining public confidence in him, by stating, in the presence of 100 people, that he had been responsible for manipulation of the media and was one of the greatest manipulators of cable television.
13. The applicant was acquitted of the charge of making statements during a session of the Tarnow Municipal Council, which was broadcast by S.Tar TV, claiming that it was not objective and behaved in a totalitarian manner. The applicant was also acquitted of the charge that he had disseminated a leaflet entitled ‘Demonstration in Tarnow’” in which he made inaccurate statements to the effect that S.Tar TV had obtained a substantial sum of taxpayers’ money following an agreement with the city council.
14. On 14 September 2004 the applicant lodged an appeal against the judgment.
15. On 19 November 2004 the Tarnow Regional Court (Sąd Okręgowy) allowed the appeal in part. The court acquitted the applicant of three charges of defamation of S.Tar TV and Mr J. R. However, the court agreed that the applicant had defamed Mr G. J. on two occasions, namely during the demonstration and on his Internet site. The court further decided to conditionally discontinue the proceedings for a probationary period of one year, as it had established that the guilt and social danger of the act committed by the applicant were not significant. The court ordered the applicant to pay PLN 500 to a charity and the private prosecutor’s costs in the proceedings, in the amount of PLN 1,420. In setting the payment the court took into account the fact that the applicant had no previous convictions and had regard to his financial standing.
16. The appeal court considered that the nature and context of the statements regarding S.Tar TV had not exceeded the boundaries of permissible criticism. The court found that the applicant had acted in the public interest, that his statements were not defamatory and that they did not therefore constitute an offence under the Criminal Code. As regards the applicant’s conviction for defamation of Mr J. R., the court quashed it and considered that there had been no evidence of an offence.
17. With regard to the part of the judgment which it upheld, concerning the defamation of Mr G. J., the court established that on 11 April 2003 the applicant had organised a demonstration against corruption, incompetence and poverty, which involved about 200 people. During the demonstration he pointed at Mr G. J., a journalist working for S.Tar TV, who was filming the event. The description of the subsequent events as established by the Regional Court and the latter’s conclusions, read:
...“[the applicant pointing at Mr G. J.] described him in the following words: ...’this is the person responsible for manipulation’... ‘this person is called [Mr G. J.] [and] is one of the greatest information manipulators of cable TV’... ‘down with [him] (precz)!’...Some time later, on [his Internet site] there appeared a notice about the demonstration which included the following statements: ... ‘during the demonstration local journalists, including Mr G. J. from Tarnów cable TV, on account of [the latter’s] lack of objectivity and tight collaboration with the incompetent President of Tarnow, Mr M. Bień, and his political godfather the Civil Platform’s MP, Mr A.Grad, was booed (“wygwizdany”) by Tarnow inhabitants... These were the statements which [the victim] considered defamatory.
The legal analysis of these statements and the circumstances in which they were made allow the conclusion that the [applicant’s] behaviour fulfilled the criteria of the offence set out in Article 212 §§ 1 and 2 of the Criminal Code.
In the Regional Court’s assessment it is beyond doubt that the term ‘manipulation’ has a highly negative connotation in the common understanding (in the Polish reality this is also caused by the negative experiences of the mass media before 1989).With regard to the process of transmitting information, this term means either telling direct untruths or presenting events in such a way as to make it impossible to see them as they are in reality – which also [amounts to telling] untruths.
The same is true with regard to the term “collaboration”, which means direct cooperation with an imposed authority, and is linked with servility and being at the latter’s disposal...
Thus, to make a charge against a journalist of participating in manipulation or collaboration with the city’s authorities, or directly calling him an ‘information manipulator’ and stating that he was booed on account of his lack of objectivity, could indisputably debase him in the eyes of the public and undermine the public confidence necessary for his profession. Society expects from the mass media and their representatives independence, objectivity, and a true description of those events which are interesting to the public.
In conclusion, it is established that [the applicant’s] behaviour was verbally aggressive, had features typical of a personal attack, and was obviously aimed at debasing Mr G. J. in the estimation of those present at the demonstration....”
18. The court also dismissed the applicant’s submissions that his statements were a value judgment. It considered that even if they could be considered value judgments, they were not in any event supported by facts. The court established that the basis of the applicant’s statement was events which had taken place during the applicant’s campaign for the post of Tarnow’s President, which had its epilogue in the Regional Court’s decision of 25 October 2002. The latter court found that S.Tar TV, but not Mr G. J., had made inaccurate statements regarding the applicant. During the election campaign S.Tar TV had broadcast a debate between the candidates; however, every time the applicant took the floor a notice appeared to the effect that the applicant had not given permission for his views to be presented to the voters; this was not true. In reality, the applicant had not agreed to the particular conditions for his presentation as proposed by S.Tar TV. However, Mr G. J. was merely a camera operator and had no influence on the station’s policy or on the broadcasting of the inaccurate information about the applicant.
19. The Regional Court considered therefore that the applicant should have limited himself to the comment that Mr G.J. “was a representative of the institution which had transmitted inaccurate information”.
20. On 16 December 2004 the Tarnow Municipal Council dismissed the applicant from his post as Vice-President of the Municipal Council. The Council considered that the applicant had been involved in unworthy conduct damaging its image by, in particular, insulting other people and constantly fighting and stirring up conflict. The Council referred to several court cases in which the applicant had been involved.
21. Article 212 of the 1997 Criminal Code provides:
“§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.
§ 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding two years.”
§ 4. The prosecution takes place under a private bill of indictment.”
22. In so far as relevant, Article 213 § 2 provides:
“Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2.”
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-79867
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SAĞAT, BAYRAM AND BERK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The case originated in an application lodged by three applicants, namely, Mr Mehmet Sağat, Mr Aydın Bayram and Mr Hasan Berk (“the applicants”). On 5 January 2006 the Court declared the application partly inadmissible as regards the first two applicants, but retained the case concerning the third. In this connection, it decided to communicate the complaint concerning Mr Berk’s detention on remand to the Government. The applicant Hasan Berk was born in 1981 and lives in Adana. He was represented before the Court by Ms Y. Dora Şeker, a lawyer practising in Adana.
The facts of the remaining case, as submitted by the parties, may be summarised as follows.
On 20 March 1999 Hasan Berk was arrested and taken into custody by police officers from the Ceyhan Security Directorate. The applicant, together with two others, was suspected of setting three vehicles on fire by throwing Molotov cocktails, with the aim of protesting the arrest of the PKK leader Abdullah Öcalan.
During his questioning by the police he confessed to having taken part in some of the incidents, but denied any involvement with the illegal organisation.
On 22 March 1999 the applicant was taken to the Ceyhan Public Prosecutor’s office where he refuted his statements given in police custody. Later, he was taken before the investigating magistrate at the Ceyhan Magistrates Court where he confessed to having participated in some of the incidents. The court ordered his detention on remand.
On 6 April 1999 the Ceyhan Public Prosecutor filed an indictment with the Ceyhan Assize Court, accusing the applicant and four others, of damaging other persons’ property, under Article 516 of the Criminal Code. On 8 April 1999 the Public Prosecutor at the Adana State Security Court also filed an indictment, accusing the applicant and four others of aiding and abetting a terrorist organisation, and charging them under Article 264 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism. The two cases were later joined before the Adana State Security Court.
At the hearings held on 6 May 1999 and 1 June 1999 the Adana State Security Court examined the case file on its own motion and, in view of the state of evidence and the seriousness of the charges, decided to prolong the applicant’s detention on remand.
On 5 July 1999 the court held a hearing in order to decide on the applicant’s detention on remand. Following the opinion of the public prosecutor and in view of “the nature of the offences charged, the state of evidence and the content of the case file”, the court ordered the applicant’s continued detention.
On 27 July 1999 the public prosecutor submitted his opinion on the merits of the case that the applicant’s involvement in the fire bomb incidents was established beyond reasonable doubt. He further proposed to the court to continue to detain the applicant on remand in view of the nature of the offences charged and the length of the probable imprisonment. The court ordered the prolongation of the applicant’s detention.
On 21 September 1999 the court convicted the applicant as charged and sentenced him to imprisonment.
On 25 April 2000 the Court of Cassation quashed the decision of the State Security Court.
On 4 July 2000 the case was resumed before the Adana State Security Court. Pointing out the age of the applicant and the length of the period which he had already spent on remand, the applicant’s lawyer requested the court to release her client pending trial. The court dismissed her request and ordered the prolongation of the applicant’s detention on remand considering the nature of the offences, the state of evidence and the content of the case file.
At the hearings of 1 August 2000, 29 August 2000 and 10 October 2000, the applicant’s lawyer repeated the request for the applicant’s release pending trial. The court dismissed the motion for the same reasons as before.
On 22 December 2000, subsequent to the enactment of Law no. 4616 on the suspension of proceedings regarding offences committed before 23 April 1999, the Adana State Security Court postponed the trial regarding the charges under Article 516 of the Criminal Code. However, it convicted the applicant under Article 168 of the Criminal Code and sentenced him to imprisonment.
On 21 June 2001 the Court of Cassation quashed the decision of the Adana State Security Court, holding that the State Security Court had to develop further the facts concerning the applicant’s involvement in the incriminating incidents.
The case was resumed before the Ankara State Security Court. On 11 September 2001, the court convicted the applicant of being a member of an illegal terrorist organisation and sentenced him to imprisonment. Moreover, in accordance with Law no. 4616, it decided to suspend the prosecution against the applicant concerning the offence of damaging property.
On 4 March 2002 the Court of Cassation upheld this decision.
According to Law no. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999, proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within a five year period.


ITEMID: 001-22835
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KAPTAN v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, a Turkish citizen born in 1962, is an employee residing in Richterswil in Switzerland. Before the Court he is represented by Mr Nideröst, a lawyer practising in Zürich.
On 11 September 1997 the Swiss customs authorities came across 88 kilos of propaganda materials addressed to the applicant, consisting of books and magazines of the Kurdish Workers’ Party PKK. The materials were transmitted to the Federal Attorney’s Office (Bundesanwaltschaft) which examined them and concluded that they propagated violence as the only alternative against the “Turkish terror State” and insulted members of the Turkish Government. The Office considered that the sale or dissemination of these publications endangered the interior and exterior security of Switzerland for which reason on 15 January 1998 it decided to seise the materials based on S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948.
The applicant’s appeal about the seisure was dismissed by the Federal Office of Justice and Police on 22 June 1998.
On 26 June 1998 the Federal Council (Bundesrat) decided on the basis of its Decree of 1948 to confiscate and destroy the materials.
The applicant filed administrative law appeals (Verwaltungsgerichts-beschwerden) with the Federal Court (Bundesgericht) against the decisions of 22 and 26 June 1998.
On 26 July 1999 the Federal Court decided to join the appeals and to dismiss them. In its judgment (published in BGE [Entscheidungen des Bundesgerichts] 125 II 417) the court considered at the outset that the Federal Council’s decision of 26 June 1998 to confiscate and destroy the materials replaced the decision of the authorities to seise the materials for which reason the applicant had lost interest in his complaint against the customs authorities.
The Federal Court then considered that in principle decisions of the Federal Council could not be contested before the Federal Court. On the other hand, the confiscation of the materials at issue related to the applicant’s “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention for which reason the applicant was entitled to have access to court. There was no other judicial body on the Federal level which could decide the applicant’s case, yet Switzerland could not invoke domestic law in order to avoid complying with obligations arising under international law. As a result, the court regarded itself competent to deal with the applicant’s complaints.
The Federal Court, which noted that the applicant had not requested a public hearing, considered that the applicant had been duly informed of the reasons of the authorities for seising the materials for which reason he was in a position duly to contest the confiscation and to present his case.
The Federal Court then examined the grounds for confiscating the materials at issue in light of the applicant’s freedom of information. It considered that the Decree of the Federal Council of 1948 served as a legal basis for the measure. The judgment continued:
“The confiscated materials concern editions of the magazine ‘Topolumsal Alternatif’ (Alternative Society) No. 5 of September 1997 and, on the other hand, paperbacks with the title ‘Kadin ve Iktidar Olgusu’ (Woman and the ability to govern). With these two publications the Kurdish Workers’ Party intends to win as many Kurds and other like-minded people for the armed resistance against Turkish authorities. Therein violence is advocated and glorified. The militarisation and the martyrs’ death of women particularly are advocated. News about successful bomb attacks, suicidal attacks, and attacks upon institutions of the Turkish State add further weight to the exhortation to employ violence.
In the Federal Council’s view, these writings served to radicalise groups tending to extremism among foreigners and the Swiss. A danger for the peaceful co-existence and therefore for the interior security of Switzerland resulted therefrom ...
Translated extracts in the case-file from the confiscated material demonstrate that the materials do not at all solely promote the concerns of the Kurdish population in Turkey. Rather, it is intended to transmit the existing tensions in Turkey into Switzerland and to create pressure among the emigrants living here. Even if the exhortation to armed struggle refers mainly to the Turkish territory, there is also the intention to radicalise the Kurds living here. Pressure should be exerted on emigrants who refuse to grant the expected support. Exhorting violence in general in order to implement Kurdish concerns will enhance the tendency also to employ violence towards compatriots living here who think differently. Such exhortation generally furthers extremist acts of violence. The writings therefore serve to endanger interior security. Since they are not at all limited to a criticism of the Turkish authorities - this would be admissible - but also insult them, they also serve to jeopardise foreign relations and therefore the neutrality of Switzerland. ... In the present case, furthermore, it does not transpire that a less far reaching measure would have been possible in order to avoid endangering the interior and exterior security, all the more so as the exhortation to armed struggle can be found in all the publications and is not limited to certain parts which could, possibly, have been blacked out.”
S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948, in force until 1 July 1998, states:
“The Federal Attorney’s Office is instructed, together with the Federal customs and postal authorities, to seise propaganda materials which serve to endanger the interior or exterior security of the Confederation, in particular its independence, its neutrality, its relations with foreign States, the political and namely the democratic institutions of Switzerland or the interests of the defence of the country, as well as antireligious texts objects.
The Federal Council shall decide on the confiscation.”


ITEMID: 001-104977
LANGUAGEISOCODE: ENG
RESPONDENT: MNE;SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŠABANOVIĆ v. MONTENEGRO AND SERBIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 10;Just satisfaction dismissed (out of time)
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1954 and lives in Herceg Novi.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 6 February 2003 a Montenegrin daily newspaper published an article about the quality of the water in the Herceg-Novi area, entitled “Taps full of bacteria” (Slavine pune bakterija). The article stated that all of the current water sources contained various bacteria. These assertions were based on a report produced by the Institute for Health (Institut za zdravlje Crne Gore), which had been requested by the Chief State Water Inspector (Glavni republički vodoprivredni inspektor, hereinafter “the Chief Inspector”), apparently with a view to exploring the possibility of connecting additional sources to the water-supply grid. The same article also included a statement by the applicant, at that time the Director of a public corporation called “The Water Supply and Sewage Systems” (JP Vodovod i Kanalizacija, hereinafter “the Water Supply Company”) and a member of the Socialist People’s Party (SNP), that he was not familiar with the analysis at issue, but that the water was regularly tested and always filtered before being pumped into the system.
8. On the same day the applicant held a press conference in response to the above-mentioned article. The applicant stated that, firstly, all tap water was filtered before being pumped into the water-supply system and was thus safe for use by the public. Secondly, the Chief Inspector had been promoting the interests of the two private companies which had already been granted licences to develop additional water sources and, lastly, the Chief Inspector had been directed to do so by the Democratic Party of Socialists (DPS) and the companies in question had themselves obtained their licences unlawfully. The statement was published in several daily newspapers.
9. On 7 April 2003 the Chief Inspector lodged a private criminal action (privatna krivična tužba) against the applicant for defamation (kleveta), claiming that the latter’s statements were untrue and, therefore, harmful to his honour and reputation.
10. On 4 September 2003 the Court of First Instance (Osnovni sud) in Podgorica held the main hearing, during which the applicant said that his statement was not defamatory, but that “it was a value judgment, which he could prove”. He stated that he had been informed about the results of the water analysis three days after the press conference, and the analysis clearly stated that the water from the water-supply system was of the necessary quality and was not a danger to health. He explained that there were obviously two reports, one concerning the water sources and one concerning the filtered water. He did not dispute the right of the Chief Inspector to ask for a water analysis, as it was his duty to do so, but the applicant did not think that the analysis of unfiltered water should have been published, but rather the analysis of the filtered water. Finally, he proposed that the court should read the article “Taps full of bacteria” to understand the context in which the impugned statement had been made, and that it should obtain the files concerning other proceedings ongoing at the time between the Water Supply Company and the two private companies in question.
11. At the same hearing the court also heard the Chief Inspector. He stated that he had always worked professionally and that he did not work under anybody’s orders, he himself having filed a criminal complaint against one of the two companies. He stated that he had ordered the analysis at issue after consulting his Minister, who had “supported” him (“koji [me] je podržao u tome”). He emphasised that the title of the newspaper article had had nothing to do with him, as newspapers wrote what they deemed appropriate (“novine pišu [...] po sopstvenom nahođenju”), although they were contacting him to obtain data. However, he was not interested in what the newspapers had written on this particular issue or why they had not published the analysis of the filtered water (“nije me interesovalo zašto nijesu objavljivali o analizi tretirane vode...”), his main concern being to prove that a particular water source was of adequate quality and that it could be used.
12. On the same day the court found the applicant guilty and sentenced him to three months’ imprisonment. This sentence, however, was suspended and was not to be enforced unless the applicant committed another crime within a period of two years.
13. In the operative part of the judgment only the following statement was found to amount to defamation, that is, to be “untrue” and “harmful to the honour and reputation of the private prosecutor”:
“The Inspector [...] works in the interest and at the request of [the two companies], as directed by the DPS”.
14. In its reasoning the court stated that the statement made by the applicant was not supported by facts and rejected the applicant’s defence that it was merely a value judgment. In the court’s view the applicant had been aware that he might harm the honour and reputation of the private prosecutor and thus had had a defamatory intention (klevetnička namjera). The court refused to read the newspaper article or to request the files of the proceedings referred to by the applicant as that would only have delayed the proceedings and, in any event, neither was relevant for the proceedings at issue.
15. On an unspecified date thereafter the applicant lodged an appeal. He stated that, firstly, the Chief Inspector had sought the said analysis in order to examine the possibility of connecting water sources administered by the two private companies to the water-supply grid. Secondly, there were two water analyses, before and after it had been filtered, but the Chief Inspector had provided the newspapers only with the analysis of the unfiltered water. Thirdly, the Chief Inspector himself had not responded to the misleading title of the article stating that the taps were full of bacteria, because he was “not interested” in it. Fourthly, the court had refused to read the newspaper article, without which it was impossible to conclude that his intention had been to defame the private prosecutor. Finally, he did not think it was defamatory to say that a “government official worked as directed by the ruling party”, or that his response to such an article could be considered to amount to defamation of the private prosecutor.
16. On 1 November 2005 the judgment of 4 September 2003 was upheld by the High Court (Viši sud) in Podgorica, which fully endorsed the reasons given by the Court of First Instance. No effective appeal lay against this judgment to the Court of Serbia and Montenegro (see paragraphs 17-18 and 29 below).
17. Article 9 § 1 of the Constitutional Charter provided that both member States shall regulate, safeguard and protect human rights in its territory.
18. The relevant part of Article 46 provided that the Court of Serbia and Montenegro shall examine complaints lodged by citizens in cases where an institution of Serbia and Montenegro has infringed their rights and freedoms as guaranteed by the Constitutional Charter, if no other legal redress has been provided.
19. Section 34 § 2 provided for the freedom to publicly express one’s opinion.
20. Section 35 § 2 stipulated that citizens have the right to express and publish their opinions via the mass media.
21. The relevant provisions of this Act read as follows:
“Whoever, in relation to another, asserts or disseminates a falsehood which can damage his honour and reputation shall be fined or punished by imprisonment not exceeding six months.
Whoever commits one of the acts described in [the above] paragraph ... through the press, via radio or television ... [, in another manner through the mass media,] ... or at a public meeting shall be punished by imprisonment not exceeding one year.
...
If the defendant proves his claims to be true or if he proves that he had reasonable grounds to believe in the veracity of the claims which he made or disseminated, he shall not be punished for defamation, but may be punished for the offence of insult ...”
“The defendant shall not be punished for insulting another person if he does so in ... a serious critique, in the performance of his official duties, [...] in defence of a right or of a justified interest, or if from the manner of his expression it transpires that there was no intent to disparage.”
22. The relevant provisions of this Act read as follows:
“In handing down a suspended sentence, the court shall impose a punishment on a person who has committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a [specified] period of time, which cannot be less than one or more than five years in all (period of suspension).”
“In deciding whether or not to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his conduct prior to and following the commission of the criminal act, the degree of his criminal liability, as well as all the other circumstances under which the act was committed.”
“The court shall revoke the suspended sentence [and order its execution] if, during the period of suspension, the convicted person commits one or more [additional] criminal acts for which he is sentenced to imprisonment for a term of or exceeding two years.
If, during the period of suspension, the convicted person commits one or more [additional] criminal acts and is sentenced to imprisonment for a term not exceeding two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether or not to revoke the suspended sentence ... ”.
23. The Government referred, inter alia, to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted by the UNECE – United Nations Economic Commission for Europe – on 25 June 1998).
24. Section 5 § 1(c) of that convention provides that in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected.
25. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.
VIOLATED_ARTICLES: 10