ITEMID: 001-87441
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TURGUT AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (ratione temporis, six month period, non-exhaustion of domestic remedies);Violation of P1-1;Just satisfaction reserved
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 8. The applicants were born in 1926, 1923, 1924, 1930, 1935, 1912 and 1957 respectively. They live in Istanbul and Ankara.
9. According to information in the case file, a plot of land measuring 45,000 sq. m (45 dönüm) in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) in August 1911 in the name of Tevfik Beyzade Hurşit Bey, an ascendant of the applicants.
10. On 9 July 1960 a plot of land measuring 102 500 sq. m, in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) by the cadastral commission in the names of Tasfire Güneş, Reşat Güneş, Saffet Güneş and Turan Güneş, the heirs of Tevfik Beyzade Hurşit Bey. Following the death of Reşat Güneş in 1977, of Tasfire Güneş in 1978 and of Turan Güneş in 1982, the respective shares were transferred to their successors and registered in the land register: Nihal Ayser Turgut, Tevfik Güneş and Turgay Güneş are the heirs of Reşat Güneş; Nermin Solmaz Güneş and Ayşe Ayata are the heirs of Turan Güneş. Hurşit Güneş had inherited shares from Turan Güneş and Tasfire Güneş as the son of the former and husband of the latter.
11. On 3 January 1962 the Ministry of Forestry brought proceedings before the Kandıra Cadastral Court (“the court”) to have the cadastral commission’s assessment of the applicants’ title to the land declared void on the ground that the land was part of the public forest estate.
12. On 5 January 1962 the Treasury in turn brought proceedings of the same kind before the court and sought registration of the land as property belonging to the Treasury.
13. On 23 May 1965 the court declined jurisdiction under section 28 of the Land Registry Act (Law no. 509) and referred the matter to the Land Registry Directorate (“the Directorate”). On an unspecified date in 1966 the Directorate referred the matter back to the court.
14. In 1966, by judgment no. 1966/11-1967/66, the court allowed the Ministry of Forestry’s application. In the reasons for its judgment, it considered essentially that the disputed land was part of the public forest estate and that therefore, pursuant to the relevant provisions of the Turkish Constitution, it could not be privately owned.
15. By a judgment of 18 June 1968 the Court of Cassation partly upheld the first-instance court’s judgment in respect of Turan Güneş and Reşat Güneş and remitted the remainder of the case to the same court.
16. At a hearing before the court, Turan Güneş stated that he had, in the meantime, filed an application with the Administrative Court for the delimitation of the land at issue to be set aside and accordingly asked the court to stay proceedings in the pending case until the Administrative Court had delivered a decision on the matter.
The Administrative Court subsequently dismissed the application to have the matter set aside. On 29 December 1969 the Supreme Administrative Court upheld the decision of the administrative court and on 12 January 1974 dismissed an application for rectification lodged by Turan Güneş. The judgment became final.
17. By a judgment of 29 June 1972, considering that the land at issue was part of the public forest estate, the court decided that it could not be privately owned and declared the title deed void.
18. On 4 July 1974 the Court of Cassation quashed the first-instance judgment, holding as follows:
“Following the amendment of section 1 of Law no. 6831 [the Forestry Act] by Law no. 1744, jurisdiction for dealing with issues concerning the classification of land as forest was assigned to the ordinary courts and [such measures] ceased to be administrative in nature. Having regard to its procedural nature, this provision is applicable to earlier events. Consequently, although the decision of the Ministry of Forestry was upheld by the Supreme Administrative Court, since jurisdiction in this respect has been transferred from the administrative to the ordinary courts, the judgment of the Supreme Administrative Court can no longer be applied. Furthermore, [in the instant case], the applicants relied upon the land register. This must be consulted and applied to the land at issue. In addition, since the judgment of the Court of Cassation is to be regarded as favourable to the heirs of Hurşit because they were joint owners under the ordinary regime of ownership in common, the land must be registered in the name of the defendants if it is established that it is not forest land, within the meaning of section 1 of Law no. 6831, as amended by Law no. 1744. Otherwise, since cadastral registration of State forests can only be carried out by special commissions set up for that purpose, in accordance with section 7 of Law no. 6831, and seeing that it is only possible to mark out the boundaries between State forests and private forests, it must be established whether the land at issue was returned or if it falls within the scope of restitution pursuant to Law no. 5658, after having been nationalised pursuant to Law no. 4785; in the latter case, it must be listed as private forest; otherwise, it must be classified as State forest and be excluded from cadastral registration [in the name of a private individual].”
19. On 10 November 1977, relying on the expert reports that had been prepared at its request, the court ordered the land at issue to be entered in the land register in the names of Tasfire, Saffet, Turan and Reşat Güneş.
20. On 28 March 1978, on an appeal by the Ministry of Forestry, the Court of Cassation overturned the court’s judgment. It held that the expert reports were inadequate and that the court should first of all seek the detailed opinion of the Ministry as to whether or not the land at issue was part of the public forest estate and, if required, commission fresh expert reports on the matter.
21. Various surveys ordered by the court on 23 July 1997 and 20 April 2001, based notably on aerial photographs taken in 1959, concluded that the land in question was part of the public forest estate. These surveys were supported by further expert reports dated 21 August 1997 and 28 April 2001.
22. On 8 May 2001 the court ruled that the land at issue was part of the public forest estate; it declared void the cadastral commission’s assessment of the applicants’ title deeds to the land and ordered it to be entered in the land register as belonging to the Treasury. In doing so, it relied on the aforementioned expert reports, the settled case-law of the plenary Court of Cassation – to the effect that title deeds to property forming part of the public forest estate had no legal value – and on the provisions of Article 169 § 2 of the Constitution enshrining the principle of the inalienability of ownership of State forests. As regards the buildings on the land, the court declined jurisdiction ratione materiae in so far as they had been erected after the title to the land deeds had been issued.
As regards the status of the applicants and/or their ascendants as parties to the proceedings, the court found, firstly, that the judgment had become final in respect of Turan and Hurşit Güneş since on 18 June 1968 the Court of Cassation had upheld the first-instance judgment concerning them and secondly, that the heirs of Turan and Hurşit Güneş had been allowed to join the proceedings following the death of their ascendants.
23. On 18 November 2001 the Court of Cassation upheld the judgment of the first-instance court.
24. By a judgment of 29 April 2002, served on the applicants on 11 June 2002, the Court of Cassation dismissed an application by them for rectification of the judgment.
25. Following the Court of Cassation’s judgment of 28 March 1978, the office of the chairman of the Forestry Cadastral Commission (Orman Kadastro Komisyon Başkanlığı) informed the Cadastral Court on 28 March 1978 that part of the disputed land had been delimited as part of the Gökdağ State forest and that the other part of the land was subject to the application of section 2(B) of the Forestry Act (Law no. 6831) and was consequently excluded from the public forest estate and transferred to the Treasury.
26. On an unspecified date Turan Güneş lodged an application for judicial review with the District Court, which registered the case as no. 1989/90. Turan Güneş challenged the application of the aforementioned section 2(B) to the land in question.
27. On 12 April 1988 the heirs of R. Gödek applied to the court to be allowed to join the proceedings as intervening parties on the ground that they held a document of title over part of the land at issue to which section 2(B) of Law no. 6831 had been applied. On 24 August 1988 the court allowed their application.
28. By a judgment of 11 July 1990 the aforementioned case no. 1989/90 was joined to the main proceedings pending before the court.
29. On 5 June 1991, claiming title to the land at issue, Z.A.K. also applied to the court for leave to join the proceedings as an intervening party; the court allowed the application on 2 December 1992. Following the death of Z.A.K. during the course of the proceedings, his successors pursued the case before the court.
30. In a judgment of 8 May 2001 the court dismissed the applicants’ application in the joined case no. 1989/90 and the applications by the other civil parties concerning delimitation, after having decided to declare the applicants’ document of title void on the ground that the land at issue was part of the public forest estate.
31. On 3 September 2003 the Ministry of the Environment and Forestry requested the İzmit Forestry Directorate to mark the disputed area of 102,500 sq. m as “forest” on the relevant maps pursuant to the judgment handed down in the matter, and to annul the decision of the cadastral commission, of which public notice had been given on 30 May 2003, excluding that land from the perimeter of the forest estate pursuant to section 2(B) of Law no. 6831.
32. On 27 October 1967, through a notary, Tasfire, Reşat, Saffet and Turan Güneş requested a private company to cease occupying and refrain from building on the land at issue.
33. On 17 May 1990 the office of the Chief of General Staff (Genelkurmay Baskanlığı) decided to transform the site of the Kefken military post into a military security zone.
34. On an unspecified date Hurşit Güneş lodged a complaint with the Kandıra public prosecutor against individuals who, he alleged, had sold various plots of the disputed land to third parties while the proceedings concerning the land were pending before the Cadastral Court. He also applied for the existing buildings on the land to be demolished.
35. On 15 February 1996 the public prosecutor decided to take no further action on the ground that the land was inside the area delimited as forest land and that the criminal court of first instance had delivered judgments concerning the occupants in 1994, further to complaints by the forestry authorities. On 18 April 1996 the Sakarya Assize Court dismissed an objection by Hurşit Güneş.
36. On 7 March 1996 an expert report was issued by two experts at the request of the Kandıra district governor’s office. The report noted the presence of approximately fifty private housing units and a military holiday camp belonging to the Ministry of Defence, comprising, inter alia, several houses, a tennis court, a picnic area, a kitchen and various storerooms, built between 1970 and 1995. The report was forwarded to Hurşit Güneş on 22 March 1996.
37. On 10 December 1997, in an additional report, the three experts noted that part of the disputed land, measuring 28,875 sq. m, had ceased to have certain characteristics of forest land prior to 31 December 1981, since it had first been used as agricultural land and had subsequently been used as residential land on which fifty-two reinforced concrete buildings of various kinds had been built.
38. On 18 May 1998 an agricultural engineer noted in a report submitted to the Cadastral Court that the land at issue could not be considered forest land and that it had features of third-class dry agricultural land but was used as building land (arsa).
39. On 9 June 1998 the technical expert added his report to the case file. A sketch of the relevant land showed the presence of the buildings and the military zone.
40. On 17 September 2002 approximately forty occupants/residents of the disputed land filed a petition with the Ministry of Forestry. They asked that the land at issue, on which there were, according to them, some one hundred and fifty individual dwellings, be excluded from the forest estate and registered as belonging to the Treasury. They expressed their desire to purchase the parts of the land corresponding to their housing plots.
41. Article 74 of the Turkish Constitution of 1924 reads as follows:
“No one shall be deprived of his possessions save in the public interest as established by a procedure provided for by law and subject to prior compensation.
The methods for the assessment and payment of compensation for the expropriation of land and forests, for the purposes of enabling farmers to own land and of nationalising forests, shall be determined by special statutes.”
42. The relevant provisions of the Turkish Constitution of 1982 read as follows:
“Everyone has the right to own and inherit property. These rights may be limited by law only in the public interest. The exercise of the right to own property shall not be in contravention of the public interest.
...”
“The State and public corporations shall be entitled, where the public interest so requires, to expropriate privately owned real estate wholly or in part or to impose public easements on it, in accordance with the rules and procedures prescribed by law, provided that the actual compensation is paid in advance.
Compensation for expropriation and for increased value, determined by a final judgment, shall be paid in cash and in advance. However, the procedure to be applied for compensation for the expropriation of land in order to carry out land reform, major energy and irrigation projects, housing and resettlement schemes and afforestation, and to protect the coasts and to build tourist facilities, shall be regulated by law. In such cases, the law may allow payment in instalments, but the payment period shall not exceed five years; any such payments shall be made in equal instalments.
Compensation for land expropriated from small farmers who cultivate their own land shall in all cases be paid in advance.
Interest equivalent to the highest applicable rate of interest on public debts shall be payable on the instalments referred to in the second paragraph above.”
“Private enterprises performing public services may be nationalised when this is required by the public interest.
Nationalisation shall be carried out on the basis of actual value. The methods and procedures for calculating actual value shall be prescribed by law.
The rules and procedures concerning the privatisation of enterprises and assets owned by the State, State economic enterprises and other public corporate bodies shall be prescribed by law.
Those investments and services carried out by the State, State economic enterprises and other public corporate bodies which may be performed by or delegated to private individuals or corporate bodies through private-law contracts shall be determined by law.
...”
“The State shall enact the necessary legislation and take the necessary measures for the protection and extension of forest areas. Forest areas destroyed by fire shall be reafforested; other agricultural and livestock-breeding activities shall not be allowed in such areas. All forests shall be under the care of the State.
Ownership of State forests shall not be transferred to others. State forests shall be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may they be subject to any easements other than in the public interest.
Acts and actions which might damage forests shall not be permitted. No political propaganda which might lead to the destruction of forests shall be carried out; nor shall any amnesties or pardons be specifically granted for offences against forests. Offences committed with the intention of burning or destroying forests or reducing forest areas shall not be included within the scope of any general or specific amnesty laws.
The reduction of forest boundaries shall be prohibited, except in respect of areas whose preservation as forests is considered to have no theoretical or practical scientific purpose, but whose conversion into agricultural land has been found to be indisputably advantageous, and in respect of land which, from a theoretical and practical scientific perspective, ceased to have any characteristics of forest land prior to 31 December 1981 and whose use for various agricultural purposes, for example as fields, vineyards, orchards or olive groves or for livestock breeding, has been found to be advantageous, and in respect of built-up areas within cities, towns or villages.”
43. The relevant principles of the Turkish Civil Code read as follows:
“Everyone has the right to own, use, manage and dispose of his property as he wishes, within the limits of the legal system.”
“Real property is acquired through registration.”
“The State is liable for any damage resulting from the keeping of land registry records.”
44. Until 1937, forests were not subject to any special regulations. Between 3 February 1937 and 31 August 1956, five main laws concerning forest property were enacted: Laws nos. 3116, (1937), 4785 (1945), 5653 (1950), 5658 (1950) and 6831 (1956).
45. Section 1 of this Law defines the concept of “forest”. Section 3 provides that there are four types of forest: State forests, forests belonging to local authorities, forests belonging to foundations and private forests. The latter belong to the State but are used by individuals who pay a tax on their use.
46. Section 1 of this Law reads as follows:
“All forests which belong to natural or legal persons, individuals, foundations, villages, municipalities, administrative authorities or public corporate bodies on the date of entry into force of this Law shall be nationalised in accordance with this Law. These forests shall be transferred to the State without the need for any notification or procedure.”
47. Section 4 of this Law provides for exceptions to nationalisation, notably as regards forests containing certain types of tree planted by individuals.
48. Section 7 of this Law makes provision for compensation in the event of nationalisation.
49. Law no. 5653 redefines forest land. By section 1 (c), scrubland is no longer considered to be forest unless the land it covers is protected or produces a harvest, in accordance with the conditions defined by this Law.
50. Section 1 further provides that, as of 3 April 1950, areas that have ceased to have the characteristics of forests will no longer be treated as such.
51. This Law distinguishes between three kinds of forest land: State forests, forests belonging to legal entities (such as villages and municipalities) and private forests.
52. Section 1 of Law no. 5658 provides for nationalised land to be returned in certain conditions:
“Of those forests nationalised by Law no. 4785 of 9 July 1945, forests which are not situated within State forests and which are surrounded by agricultural land such as fields, vineyards, gardens, places such as private forests, cities, towns or village grazing land, and forests belonging to villages, municipal authorities or individuals which are surrounded by land not classified as forest land under section 1 of the Forestry Act, provided they are entirely separate from State forests, shall be returned upon request to their owners or to the heirs thereof.”
53. Section 1 of this Law defines the concept of “forest” and the exceptions thereto.
54. Section 2(B) (as amended on 5 June 1986 by Law no. 3302) provides:
“Places that scientifically and technically ceased to be forest land before 31 December 1981 shall be excluded from the boundaries of the forest, firstly if it has been determined that such places are suitable for various agricultural purposes as farmland, vineyards, gardens, olive groves, fruit, hazelnut or pistachio (or pine nut) orchards, or for livestock purposes, and secondly, in the case of built-up areas within cities, towns or villages.
The places excluded from the forest boundaries shall be transferred to the Treasury if they already belonged to the State, or to public legal entities if they already belonged to them, or to their owners if the areas in question were private forests. The necessary rectifications and entries shall be made permanently in the land register when the procedure [for exclusion from forest boundaries] becomes final.
No reduction to forest areas may be made other than in the specified places ...”
55. Section 4 states that, from the point of view of ownership and administration, there are three types of forest: State forests (sections 7 to 44), forests belonging to public legal entities (sections 45 to 49) and private forests (sections 50 to 55).
56. Section 7 of this Law provides that the nature of an area – State forest or private forest – is defined by the cadastral commissions. Furthermore, sections 7 to 12 of the Law govern the way in which the cadastral commissions operate.
57. State forests are under the protection of the State. Any act altering their forest character is prohibited (sections 14 to 19 in particular) and constitutes an offence. Sections 79 to 90 set out the procedures applicable to the prosecution of unlawful acts. The criminal penalties for unlawful acts are set out in sections 91 to 114. The penalties for certain offences may be reduced if the perpetrator of the act constituting the offence is the owner of the area in question (see, for example, section 91(6)).
58. Private forests are subject to inspection and supervision by the State. Their owners have a limited right to make use of them. Furthermore, they are entitled, inter alia, to build on an area not exceeding 6% of the total surface area of the land (section 52(2)) if the private forest concerned is located in a built-up area (village, town or city).
59. Law no. 6831 has been amended on various occasions, by Laws nos. 1744 (1973), 2896 (1983), 3302 (1986), 3373 (1987), 3493 (1988), 4079 (1995), 114 (1995), 4570 (2000), 4999 (2003), 5177 (2004), 5192 (2004) and 5728 (2008).
60. On 23 June 1964, the Constitutional Court abrogated sections 3 and 4 of the Forestry Act (Law no. 4785) since they were inconsistent with Article 38 of the Constitution as in force at the material time, which took the actual value of the property as the basis for any compensation payable in the event of expropriation. Section 3 indicated that the value of a nationalised forest was assessed on the basis of the tax return. Section 4 defined the criteria for the purchase of buildings located in a nationalised forest. On the issue of whether the abrogation of the provisions concerned would create a legal vacuum in this sphere, the Constitutional Court held as follows:
“... when the provisions at issue are abrogated, the general provisions of the Expropriation Act will be applied to the expropriation of forests.”
61. On 28 March 1995 the Court of Cassation found that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In its judgment it set forth the criteria under which the Treasury could be held liable: damage, an unlawful act by a civil servant and a causal link between the damage and the act. It also pointed out that the damage must have been permanent and the application must have been made within one year from the actual occurrence of the damage and, whatever the circumstances, within a general limitation period of ten years.
62. In a judgment of 26 April 1999 the Court of Cassation repeated that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In that particular case, the party concerned was unable to have certain interim measures applied to the property of the person indebted to him because the land registers had not been kept in accordance with the regulations.
63. On 7 May 2002, the general assembly of the plenary Supreme Administrative Court (Danıştay Dava Daireleri Genel Kurulu) found that the ordinary courts had jurisdiction where a document of title had been declared void by the Cadastral Court on the ground that the land at issue had been part of the public forest estate (the area was subsequently excluded from the public forest estate as it had ceased to have the characteristics of forest land). In that case, the administrative courts had dismissed a claim for compensation, relying on the judgment of the Cadastral Court in which the interested party’s document of title had been declared void. They had considered that that judgment was in accordance with the law.
64. In its judgment of 7 May 2002 the First Division of the Court of Cassation quashed the judgment of the lower court that had dismissed the interested party’s application and held that the State should be found strictly liable for the acts of civil servants of the cadastral commission, who had concluded in error that the land at issue was not part of the public forest estate. Because of that act, no reference had been made in the land register as regards the forest status of the land, which had been sold to third parties who had relied upon the registers. In that particular case, the land at issue had been registered in the names of third parties following the conclusions of the cadastral commission in 1959 and a deed of title had initially been issued in their name. The plaintiff had acquired the land in 1994 on the basis of information appearing in the land register, which made no reference to its being forest land. Between 1977 and 1982 the cadastral commission carried out further surveys and concluded that the land at issue was no longer part of the forest estate as it had ceased to have the characteristics of a forest. It decided to exclude it from the forest estate. A note to this effect was added to the land register in 1995.
65. On 30 October 2006 the Third Division of the Court of Cassation upheld the District Court’s judgment of 12 June 2006, which had found that the administrative courts had jurisdiction to deal with disputes concerning claims for compensation in connection with land registration following surveys carried out by the cadastral commission. In that particular case, the land had been acquired by the interested party in 1953. It had then been registered in his name following a cadastral commission survey. Later, the document of title issued to the party concerned was declared void by the court on the ground that the land was part of the forest estate. The court dismissed the application, holding as follows:
“The claimant is seeking compensation on the basis of two administrative measures: the issuing of the document of title and its invalidation as a result of the delimitation of the forest boundary. The claimant submits in addition that the administrative authority committed an error in so far as he, as the holder of the document of title, was not notified of the result of the delimitation following the survey. A claim for compensation for damage caused by an administrative measure may only be brought before the administrative court by way of an action for damages.”
On 30 January 2008, in response to an application of 5 December 2007 by Mr M. Öztok, the claimant’s representative in the above-mentioned case (and also the representative of the applicant in the case of Köktepe v. Turkey, no. 35785/03), the Presidential Council of the Court of Cassation (Yargıtay Birinci Başkanlık Kurulu) stated that there was no contradiction between the two earlier judgments and that accordingly, it was not necessary to resort to the case-law harmonisation procedure.
66. By a judgment of 19 April 2006 the general assembly of the Court of Cassation upheld the judgment of the lower court, which had held the State strictly liable for the acts of civil servants of the Land Registry Directorate. In that particular case, a third party had sold land to the claimant in 1976 on the basis of a false court decision, despite the fact that in 1954, the land in question had been classified by the cadastral commission as grazing land (mera) and therefore State property. The lower court had partly allowed the claim and had awarded compensation for the house that the claimant had built and the trees he had planted on the land at issue. The Court of Cassation held that the fact that the claimant could take action against the third party did not exempt the administration from strict liability. Even in the absence of fault, the State was liable as long as three conditions were met: there had been a wrongful act, damage had been caused and there was a causal link between the wrongful act and the damage. Furthermore, the Court of Cassation made reference to the provisions of the Civil Code protecting the good faith of a person who had relied on the land register.
67. On 26 June 2006 the Bursa Administrative Court dismissed a claim for compensation for damage allegedly suffered by the claimant as a result of having his document of title declared void because his land was part of the forest estate. The claimant applied to the Administrative Court after having referred the matter to the ordinary courts, which had declined jurisdiction ratione materiae. According to the Administrative Court, the claim was out of time as the claimant should have brought it within sixty days from the date on which the judgment annulling his document of title became final.


ITEMID: 001-58156
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF PAILOT v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 7. Mr Jean-Marc Pailot, a French national born in 1952, is a clerical worker employed by an insurance firm. He is a haemophiliac and has received numerous blood transfusions.
8. A test carried out on 27 August 1985 showed that the applicant had been infected by the human immunodeficiency virus (HIV). Since November 1994, he has been classified as having reached stage III of the four stages on the scale of the Atlanta Center for Disease Control.
9. On 23 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought 2,500,000 French francs (FRF) in compensation for the medical disorders of all kinds he had suffered on account of his infection with HIV. His application was rejected on 30 March 1990.
10. On 30 May 1990 Mr Pailot brought an action in the Châlons-sur-Marne Administrative Court seeking FRF 2,500,000 in compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his becoming infected with HIV. On 14 December 1990 the Châlons-sur-Marne Administrative Court referred the case to the Conseil d’Etat, which, on 27 February 1991, designated the Paris Administrative Court to deal with it. The application was registered with that court on 18 March 1991.
11. On 1 June 1991 the Aube Health Insurance Office filed a pleading. The case was then set down for a hearing on 3 April 1992.
12. On 17 April 1992 the Administrative Court gave an interlocutory judgment, holding that “the State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985” and “... that there are grounds for the Administrative Court to order the State to pay compensation for the whole of the damage suffered”.
At Mr Pailot’s request, the court ordered an expert medical opinion in order to establish whether he had been infected during that period. An expert was appointed by the President of the Administrative Court the same day.
13. The expert’s report, filed on 23 December 1992, stated:
“...
In 1985 [Mr Pailot] was given two prescriptions for 6 P.P.S.B. and Factor IX concentrates, the first on 2 March 1985 and the second on 27 August 1985 ... in other words, within the period of liability defined above (12 March to 1 October), at least as regards the prescription of 27 August 1985. However, it has not been possible to ascertain the exact date on which the products delivered on 2 March 1985 were administered.
On 27 August 1985 it was confirmed that he had been infected with HIV...
Given that the appearance of antibodies detectable by biological tests (seroconversion) cannot be observed until 6 to 12 weeks (or, exceptionally, several months in rare cases) after infection, it can be concluded that Mr Jean-Marc Pailot might have been infected in May or June 1985 (1st serological test performed on 27 August 1985).
...
As regards the ‘period of the State’s liability’ (12 March 1985 to 1 October 1985), it is not impossible, but neither is it certain, that the products delivered at the beginning of March 1985 were administered after 12 March 1985, resulting in an infection with seroconversion confirmed on 27 August 1985, assuming that infection had not taken place earlier, which is unlikely in view of the blood derivatives he had received previously.
... the date on which he became infected cannot be determined with certainty.”
14. After holding a hearing on 26 February 1993, the Administrative Court gave the following judgment on 26 March 1993:
“Regarding the claim for the award of damages against the State:
The expert’s report has shown that a causal link between the applicant’s infection with HIV and the administration of blood derivatives during the period of the State’s liability (12 March 1985 to 1 October 1985) cannot be deemed to have been established; consequently, the claim contained in Mr Jean-Marc Pailot’s application for compensation from the State for the damage sustained as a result of this infection can only be rejected.”
15. On 9 April 1993 the Judicial Assembly of the Conseil d’Etat gave three landmark judgments, fixing 22 November 1984 as the start of the period of the State’s liability and awarding the victims compensation at a flat rate of FRF 2,000,000 (see paragraph 39 below).
16. Relying on this case-law, the applicant appealed to the Paris Administrative Court of Appeal on 4 June 1993.
17. On 28 August 1993 the Deputy Minister for Health filed his defence pleadings in which he submitted that only the judgment of 26 March 1993 was being appealed and that the judgment of 17 April 1992, which established the period of the State’s liability as 12 March to 1 October 1985, had therefore become final.
18. On 3 November 1993 the Compensation Fund for Transfusion Patients and Haemophiliacs infected with HIV informed the Administrative Court of Appeal that Mr Pailot had accepted the Fund’s offer of compensation.
19. After holding a hearing on 20 January 1994, the Administrative Court of Appeal gave judgment on 3 February 1994 in which it upheld the Minister’s arguments and dismissed the applicant’s appeal, holding that it had not been established by the contents of the file that the applicant had received after 12 March 1985 blood products which could have infected him.
20. On 1 April 1994 the applicant appealed on points of law to the Conseil d’Etat.
21. On 1 June 1994 the applicant filed supplementary pleadings claiming that his appeal, in which he had requested that the start of the period of the State’s liability be fixed at 22 November 1984 implicitly but necessarily criticised the interlocutory judgment of 17 April 1992 which had fixed the start at 12 March 1985. He therefore requested the Conseil d’Etat to quash the Administrative Court’s judgment and, under section 11 of Law no. 87-1127 of 31 December 1987, to determine the merits of the case without remitting it to the Administrative Court of Appeal and to order the State to pay him FRF 2,000,000, less the amount paid out by the Compensation Fund.
22. On 27 March 1995 the Admissibility Committee declared his appeal admissible.
23. In the meantime, on 28 December 1994, Mr Pailot had lodged an application (no. 26116/95) with the European Commission of Human Rights. On 28 June 1995 the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement of the case (see paragraph 42 below).
24. On 13 and 19 October 1995 respectively, the Aube Health Insurance Office and the Compensation Fund for Transfusion Patients submitted their observations.
25. On 30 October 1995 the Conseil d’Etat asked the Minister of Employment and Social Affairs to submit his observations on the applicant’s appeal. On 15 December 1995 the Minister replied that the application did not call for any observations on his part.
26. On 26 December 1995 the applicant submitted his observations.
27. On 3 January 1996 a reporting judge at the Conseil d’Etat was appointed.
28. On 19 January 1996 the applicant filed a number of documents. On 17 January and 17 April 1996 Mr Pailot wrote to the Secretary to the Fifth Section of the Judicial Division of the Conseil d’Etat, which was dealing with the case, and to the reporting judge who had been appointed, drawing their attention to the length and protractedness of the proceedings and the urgency of the case given his state of health. He received no reply.
29. On 2 July 1996 the applicant lodged a further application (no. 32217/96) with the Commission, which was registered on 10 July 1996, complaining that the proceedings were still pending before the Conseil d’Etat.
30. On 29 August 1996 the reporting judge at the Conseil d’Etat filed his report.
31. On 2 September 1996 the case was allocated to a judge-reviser.
32. On 26 February 1997 a government commissioner was appointed. The case was then listed for a hearing on 19 March 1997.
33. On 23 April 1997 the Conseil d’Etat quashed the judgments of the Administrative Court and the Administrative Court of Appeal. Applying section 11 of the Law of 31 December 1987 (see paragraph 21 above), the Conseil d’Etat found the State liable for Mr Pailot’s infection and gave the following judgment:
“The State is liable in respect of persons who were infected with the human immunodeficiency virus following the transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985; Mr Pailot was found to be HIV-positive on 27 August 1985; the State is therefore liable for the damage sustained by Mr Pailot as a result of the blood transfusions he received during the period defined above; he is therefore justified in requesting this Court to quash the judgments of the Paris Administrative Court of 17 April 1992 and 26 March 1993 rejecting his claim for compensation...”
The State was ordered to pay the applicant FRF 2,000,000, less FRF 1,037,750 paid out by the Compensation Fund for Transfusion Patients and Haemophiliacs and FRF 100,000 paid out by the Haemophiliacs’ Solidarity Fund, that is FRF 862,250 in all, plus interest at the statutory rate from 26 December 1989 with capitalisation of the accrued interest from 1 June 1994.
34. The State paid the applicant the principal of FRF 862,250 in July 1997 but, to date, has not paid the interest.
35. In separate proceedings the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs that had been set up by the Act of 31 December 1991 (see paragraph 38 below).
36. In a decision of 8 September 1992, the Fund awarded him compensation of FRF 1,517,000, of which FRF 1,137,750 was payable in three equal annual instalments and FRF 379,250 if and when Aids was diagnosed. The Compensation Fund deducted from this offer the FRF 100,000 paid out by the Haemophiliacs’ Solidarity Fund.
37. On 28 January 1993 the Compensation Fund paid Mr Pailot FRF 1,037,750.
38. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides:
“I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below.
II. ...
III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board.
...
IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the information in their possession.
Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy.
...
V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage...
...
VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court.
X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat.
XI. ...
XII. The Compensation Fund’s sources of revenue shall be specified in a subsequent Act.
XIII. ...
XIV. ...”
39. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that “the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985” (see paragraph 15 above).
40. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions:
“Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision.
Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint.
...”
“The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security.”
“Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur.
“Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this code, the president of the court or division shall issue a formal notice to comply.
In the event of force majeure, a final extension of time may be granted.
If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment.”
“Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one.”
“A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter’s president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter.”
41. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 38 above):
“Part II
Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991
In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991.
Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings.
Where the victim has accepted an offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court.
The registry shall notify the parties of the information communicated by the Fund.
The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened.
...
The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...”
42. On 28 December 1994 Mr Pailot lodged an application with the Commission, registered on 4 January 1995 under file no. 26116/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 28 June 1995 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention:
“…
On 8 March 1995 the applicant’s representative informed the Commission that the applicant was prepared to accept the sum of 200,000 (two hundred thousand) French francs for non-pecuniary damage, to which were to be added the costs and expenses he had incurred before the Commission, the whole to be paid within one month of the adoption of the Commission’s report. On 3 May 1995 he informed the Commission that the costs came to FRF 23,270 and also requested the payment of interest in the event of delayed settlement. In a letter of 24 May 1995 the Agent of the Government informed the Commission that the Government were prepared to agree to a settlement based on these proposals.
On 28 June 1995 the Commission noted that the parties had reached agreement on the terms of a settlement. It also stated the opinion, having regard to Article 28 § 1 (b) of the Convention, that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention.
…”
The text of the applicant’s declaration that he accepted the friendly settlement, which bears his signature, reads as follows:
“I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the lawyers’ fees and other costs I have incurred in this case.
I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against the French State in the French and international courts.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22209
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SCHÜSSEL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant, Wolfgang Schüssel, is an Austrian national, who was born in 1945 and lives in Vienna. He is represented before the Court by Mr W. Suppan, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant was Deputy Prime Minister of Austria in a coalition Government formed by the Austrian Social-democratic Party (Sozialdemokratische Partei Österreichs) and the applicant’s party, namely the Austrian Peoples’ Party (Österreichische Volkspartei). In the 1995 election campaign the applicant had been nominated by his party as candidate for the office of Prime Minister.
In November 1995 the Austrian Social-democratic Party and the Group of Social-democratic Trade Unionists distributed stickers showing a picture of the applicant’s face half overlapped by the face of Mr Haider, the leader of the Austrian Freedom Party (Freiheitliche Partei Österreichs), headed by the following text: “The social security slashers and the education snatchers share a common face” (“Sozialabbau und Bildungsklau haben ein Gesicht”).
On 21 November 1995 the applicant brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz).
On 28 November 1995 the Vienna Commercial Court (Handelsgericht) granted the applicant’s request for a preliminary injunction prohibiting the defendants from publishing and disseminating the applicant’s picture, in the event that his legitimate interests were thereby injured, firstly, in that the accompanying text alleged that he was a “social security slasher” and an “education snatcher” or, secondly, in that his face was distorted by being overlapped with the face of a politician of an opposing party, that of Jörg Haider.
In its reasoning, the Commercial Court noted that section 78 of the Copyright Act protected anyone against abuse of his or her picture in public. A person in the public eye, in particular one who had entered the public arena of his or her own motion, was not protected in this public capacity. The applicant had put himself at the centre of his party’s election campaign. As his party’s top candidate, he could be regarded as endorsing its positive statements and had to accept being the target of its opponents’ criticism. Thus, the use of his picture by political opponents was not in itself contrary to section 78 of the Copyright Act. However, while the applicant had to accept admissible criticism directed against the party represented by him, an infringement of his legitimate interests was conceivable regarding attacks on his privacy or personal disparagement which went beyond the limits of acceptable criticism. This consideration applied in particular where his picture was used in a distorted manner. In the present case, the applicant did not have to accept the distorted use of his picture “melted” with the picture of a political opponent.
Further, the Commercial Court examined whether the publication of the applicant’s picture in the context of the impugned statement “The social security slashers and the education snatchers share a common face” was unlawful. It found that the combination of the applicant’s picture with disparaging expressions suggesting that he was insensitive to social needs and was stealing educational opportunities violated his legitimate interests.
On 15 December 1995 the Vienna Commercial Court dismissed the objection (Widerspruch) of the defendants.
On 18 October 1996 the Vienna Court of Appeal (Oberlandesgericht), upon the defendants’ appeal, confirmed the preliminary injunction order as to the prohibition to publish a distorted picture of the applicant, but lifted it as regards the prohibition to publish it accompanied by the incriminated text.
The Court of Appeal confirmed that the applicant did not have to accept the publication of his distorted picture overlapped with the picture of a political opponent. However, as to the accompanying text, it found that the expressions “social security slashers” and “education snatchers”, though being blunt, were no more than the usual graphic wording applied in an election campaign. The average citizen would conclude that the applicant advocated reducing social assistance and making budgetary cuts in the education system. The statement could not be understood as to contain an allegation of theft within the meaning of the Criminal Code, nor did it suggest that the applicant was generally insensitive to social needs.
On 28 January 1997 the Supreme Court, upon the defendants’ appeal on points of law, quashed the Appeal Court’s decision and dismissed the applicant’s request for a preliminary injunction.
The Supreme Court observed that, when examining whether the publication of a picture violated legitimate interests within the meaning of section 78 of the Copyright Act, it had to be taken into account whether the person concerned was well-known. However, even where a well-known politician was concerned, there were limits to the admissible publication of his picture. Such limits applied where the publication intruded on a politician’s privacy, where his picture was distorted or where it was accompanied by a text which connected him with events with which he had nothing to do or attributed political convictions to him which he did not hold.
The Supreme Court confirmed the appellate court’s view that section 78 of the Copyright Act did not prohibit the publication of the applicant’s picture in the context of the allegation that he was a social security slasher and an education snatcher. The impugned statement was - contrary to the applicant’s view - not a statement of fact but a value judgment. The dividing line between statements of fact and value judgments depended on the context in which the statement was made and the impression it conveyed. In general, the public would understand attributions of negative intentions to one politician by his political opponents as value judgments. Whether measures proposed in the interest of consolidating the budget were perceived as slashing social security or, on the contrary, as preserving a sound economic basis for the social security system, was indeed a value judgment.
The Supreme Court went on to say that political debate and the shaping of public opinion was sometimes impossible without having recourse to graphic wording. It recalled that political debate was protected by the right to freedom of expression as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Referring to the case-law of the European Court of Human Rights, the Supreme Court recalled that the limits of acceptable criticism were wider for a politician than for a private individual. A politician inevitably and knowingly laid himself open to close scrutiny of his every word and deed by journalists, the public at large and his political opponents. Thus, as his party’s top candidate, the applicant had to accept that his political opponents used disparaging words to describe his political aims.
As to the question of whether the publication of the applicant’s picture overlapping with Mr Haider’s was contrary to section 78 of the Copyright Act, the Supreme Court contested the appellate court’s view. It was clear to every onlooker that the faces of two leading politicians had been combined by way of photomontage. The picture showed the applicant as he had presented himself in the election campaign without making his features ugly or repulsive. The sticker simply conveyed the political message that the applicant advocated the same policy as Mr Haider on social security and education issues. This was the “common face” of the defendant’s two most important opponents. On the whole, this was an admissible political statement rather then a personal disparagement of the applicant.
In the subsequent main proceedings, the Vienna Commercial Court held a hearing on 29 April 1997. The applicant’s counsel submitted that the sticker at issue suggested to the general public not only that the applicant’s future political intention was to reduce social security or educational opportunities but that he had already taken such measures. He requested that a member of the applicant’s party be heard as a witness. The court dismissed the request, finding that the matter was ready for decision.
The Commercial Court, referring to the Supreme Court’s reasoning, dismissed the applicant’s request that the defendants be prohibited from publishing his picture in the event that his legitimate interests were thereby injured, firstly, in that the accompanying text alleged that he was a “social security slasher” and an “education snatcher” or, secondly, in that his face was distorted by being overlapped by the face of a politician of an opponent party, in particular Jörg Haider’s.
On 18 September 1997 the Vienna Court of Appeal dismissed the applicant’s appeal. As to the applicant’s complaint that the witness requested by him had not been heard, the court found that the question of what impression was conveyed by the sticker at issue was a matter of legal assessment to be carried out by the court.
On 24 February 1998 the Supreme Court dismissed the applicant’s appeal on points of law. It found that the applicant’s submissions in the main proceedings did not raise any relevant new facts as compared to the preliminary injunction proceedings.
Section 78 of the Copyright Act, insofar as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question, or in the event they have died without having authorised or ordered publication, of a close relative would be injured.”


ITEMID: 001-110758
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF GOLDSTEIN AND S.C. RING PRESS SRL v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The first applicant was born in 1951 and lives in Bucharest. He is a journalist; on the date of the events in issue in this case he was the editorinchief of the daily newspaper Bursa and senior partner and legal representative of the applicant company. The applicant company is the owner and publisher of Bursa and has its headquarters in Bucharest.
The applicants are represented by Mrs Gabriela Romanita, a lawyer practising in Bucharest. The Romanian Government (“the Government”) are represented by their Agent, Mrs Irina Cambrea, of the Ministry of Foreign Affaires.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Starting in 2001, the first applicant wrote a series of over fifty articles in Bursa concerning the difficult financial situation of the media trust M.P. He also expressed his dissatisfaction with the alleged preferential treatment being given to M.P. by the State in the payment of taxes.
4. M.P. lodged a complaint against the applicant company, claiming that the articles written by the first applicant constituted acts of unfair competition. It based its action on Article 4(e) of the Competition Act (Law no. 11/1991), which prohibited denigration as an act of unfair competition.
The trust made reference to the following articles: “Minister [V.D.] allows himself to be manipulated by [M.P.]” (“Ministrul V.D. se lasă manipulat de [M.P.]”); “[M.P.] – possible subject of interstate criminal investigation” (“[M.P.] – posibil subiect de cercetare penală interstatală”); “[M.P.] – choked by debts but insolent” (“[M.P.] – înglodat în datorii, dar cu tupeu”); “According to American accounting CME’s profits are showing a loss at [M.P.]” (“Profiturile CME după contabilitatea americană reprezintă pierderi la [M.P.]”); “Naivety? Incompetence? Corruption?” (“Naivitate? Incompetenţă? Corupţie?”); “[M.P.] of Romania is being investigated by the Washington Securities and Exchange Commission” (“[M.P.] din România a intrat sub investigaţiile Securities and Exchange Commission din Washington”); and “[P. TV] – ANTINATO” (“[P. TV] – ANTINATO”).
The articles contained references to reports by the Security and Exchange Commission, the European Commission and the White Book of Governance of December 2000. In an article from the same series, published on 7 May 2001 in Bursa, M.P. were invited to present their point of view on the matter.
5. On 14 November 2002 the Bucharest County Court allowed the action and ordered the applicant company “to refrain from spreading, through its publications, defamatory statements about the plaintiff’s activities”. The applicant company was also ordered to pay 800,000,000 Romanian Lei (ROL) in respect of nonpecuniary damage and to publish a copy of the court’s seven-page decision in Bursa.
The relevant parts of the court’s reasoning read as follows:
“That [the applicant company’s] acts fall within the sphere of competition is proved by the manner in which, in a series of articles in the newspaper Bursa, it presented the activities of the [media trust], activities which ... concern the public at large.
Relevant in this respect are the articles concerning the news agency [owned by M.P.] about which [the applicant company] commented, for example, that: ‘... a press review cannot be entrusted to an agency which is part of the media trust with the highest debt in the country – [M.P.]; it is in its interest to eliminate any reference to the corrupt circle which tolerates its debts.’...
Most of the articles contain ... open accusations about [M.P.].
They concern, for example, [M.P.]’s financial situation: ‘the group with the highest debt in the country’, ‘an inveterate debtor’, ‘choked by debts but insolent’, ‘incorrect’, ‘... accounting mishmash’; or the group’s business dealings: ‘Romania’s Enron’, ‘possible candidate for an interstate criminal investigation’, promoting ‘incestuous management’.
Because of their gravity, these statements, even if proved true, promote a feeling of disapproval, even disgust towards the media group. The phrases indicate that the [applicant company] misunderstood the freedom of the press and the right to hold an opinion and to impart information...
The repeated publication, over a long period of time, of negative information concerning a competitor’s activities, in a manner capable of arousing their clients’ disapproval, cannot constitute fair and acceptable competition ...
Guilt exists as long as there is unfair competition.
Bad faith is no more than an aggravating circumstance ... [negative consequences] may ensue even without intent. [Lack of intent] does not preclude responsibility.
Indeed, other newspapers published similar articles, but they did not constitute acts of competition, and were not defamatory or repeated over time. In any case, [the fact that other newspapers published similar articles] does not preclude the defendant’s responsibility.”
6. On 10 June 2003 the decision was upheld by the Bucharest Court of Appeal. It thus became final.
The relevant parts of the appeal court’s decision read as follows:
“... the impugned articles present a comparative evaluation of the journalistic means used by Bursa and [M.], a comparison unfavourable to [M.P.]...
The [applicant company’s] bad faith is proved by its behaviour: extremely serious, biased accusations; length [of the campaign] and the frequency of the articles against the [M.P.]; and also the manner in which the incriminated articles were written and presented ...
The first-instance decision has not infringed the [applicant company’s] freedom of expression. [The applicant company] retains the liberty to publish any information, even unfavourable or negative, so long as the information is correct and true and the publication does not become a press campaign aimed at destroying a competitor’s image and reputation ...
In the case at hand, the accusations of corruption, fraud, political blackmail and manipulation, as well as manipulation through mass media, undoubtedly affect the public image, prestige and reputation [of M.P.] ...”
7. Several other actions were lodged by M.P. against the applicants: a similar complaint of unfair competition (dismissed on 24 April 2002 by the Bucharest County Court as M.P. failed to pay the court fees), two actions in tort (the first dismissed on 23 November 2003 and the second allowed by the first-instance court, but appealed against by the first applicant), and an action in defamation against the first applicant (dismissed on 24 October 2002 by the Bucharest District Court).