ITEMID: 001-57705
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF OBSERVER AND GUARDIAN v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;No violation of Art. 13 or 14+10;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 9. The applicants in this case (who are hereinafter together referred to as "O.G.") are (a) The Observer Ltd, the proprietors and publishers of the United Kingdom national Sunday newspaper Observer, Mr Donald Trelford, its editor, and Mr David Leigh and Mr Paul Lashmar, two of its reporters; and (b) Guardian Newspapers Ltd, the proprietors and publishers of the United Kingdom national daily newspaper The Guardian, Mr Peter Preston, its editor, and Mr Richard Norton-Taylor, one of its reporters. They complain of interlocutory injunctions imposed by the English courts on the publication of details of the book Spycatcher and information obtained from its author, Mr Peter Wright.
10. In litigation where the plaintiff seeks a permanent injunction against the defendant, the English courts have a discretion to grant the plaintiff an "interlocutory injunction" (a temporary restriction pending the determination of the dispute at the substantive trial) which is designed to protect his position in the interim. In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial.
The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396) and may be summarised as follows.
(a) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration.
(c) If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial, no interlocutory injunction should normally be granted. If, on the other hand, damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff’s undertaking if the defendant were to succeed at the trial, there would be no reason to refuse an interlocutory injunction on this ground.
(d) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises.
(e) Where other factors appear evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo.
11. Mr Peter Wright was employed by the British Government as a senior member of the British Security Service (MI5) from 1955 to 1976, when he resigned. Subsequently, without any authority from his former employers, he wrote his memoirs, entitled Spycatcher, and made arrangements for their publication in Australia, where he was then living. The book dealt with the operational organisation, methods and personnel of MI5 and also included an account of alleged illegal activities by the Security Service. He asserted therein, inter alia, that MI5 conducted unlawful activities calculated to undermine the 1974-1979 Labour Government, burgled and "bugged" the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad, and that Sir Roger Hollis, who led MI5 during the latter part of Mr Wright’s employment, was a Soviet agent.
Mr Wright had previously sought, unsuccessfully, to persuade the British Government to institute an independent inquiry into these allegations. In 1987 such an inquiry was also sought by, amongst others, a number of prominent members of the 1974-1979 Labour Government, but in vain.
12. Part of the material in Spycatcher had already been published in a number of books about the Security Service written by Mr Chapman Pincher. Moreover, in July 1984 Mr Wright had given a lengthy interview to Granada Television (an independent television company operating in the United Kingdom) about the work of the service and the programme was shown again in December 1986. Other books and another television programme on the workings and secrets of the service were produced at about the same time, but little Government action was taken against the authors or the media.
13. In September 1985 the Attorney General of England and Wales ("the Attorney General") instituted, on behalf of the United Kingdom Government, proceedings in the Equity Division of the Supreme Court of New South Wales, Australia, to restrain publication of Spycatcher and of any information therein derived from Mr Wright’s work for the Security Service. The claim was based not on official secrecy but on the ground that the disclosure of such information by Mr Wright would constitute a breach of, notably, his duty of confidentiality under the terms of his employment. On 17 September he and his publishers, Heinemann Publishers Australia Pty Ltd, gave undertakings, by which they abided, not to publish pending the hearing of the Government’s claim for an injunction.
Throughout the Australian proceedings the Government objected to the book as such; they declined to indicate which passages they objected to as being detrimental to national security.
14. Whilst the Australian proceedings were still pending, there appeared, on Sunday 22 and Monday 23 June 1986 respectively, short articles on inside pages of the Observer and The Guardian reporting on the forthcoming hearing in Australia and giving details of some of the contents of the manuscript of Spycatcher. These two newspapers had for some time been conducting a campaign for an independent investigation into the workings of the Security Service. The details given included the following allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers:
(a) MI5 "bugged" all diplomatic conferences at Lancaster House in London throughout the 1950’s and 1960’s, as well as the Zimbabwe independence negotiations in 1979;
(b) MI5 "bugged" diplomats from France, Germany, Greece and Indonesia, as well as Mr Kruschev’s hotel suite during his visit to Britain in the 1950’s, and was guilty of routine burglary and "bugging" (including the entering of Soviet consulates abroad);
(c) MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the time of the Suez crisis;
(d) MI5 plotted against Harold Wilson during his premiership from 1974 to 1976;
(e) MI5 (contrary to its guidelines) diverted its resources to investigate left-wing political groups in Britain.
The Observer and Guardian articles, which were written by Mr Leigh and Mr Lashmar and by Mr Norton-Taylor respectively, were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material. However, much of the actual information in the articles had already been published elsewhere (see paragraph 12 above). The English courts subsequently inferred that, on the balance of probabilities, the journalists’ sources must have come from the offices of the publishers of Spycatcher or the solicitors acting for them and the author (see the judgment of 21 December 1987 of Mr Justice Scott; paragraph 40 below).
15. The Attorney General instituted proceedings for breach of confidence in the Chancery Division of the High Court of Justice of England and Wales against O.G., seeking permanent injunctions restraining them from making any publication of Spycatcher material. He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant. It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose.
16. The evidential basis for the Attorney General’s claim was two affidavits sworn by Sir Robert Armstrong, Secretary to the British Cabinet, in the Australian proceedings on 9 and 27 September 1985. He had stated therein, inter alia, that the publication of any narrative based on information available to Mr Wright as a member of the Security Service would cause unquantifiable damage, both to the service itself and to its officers and other persons identified, by reason of the disclosures involved. It would also undermine the confidence that friendly countries and other organisations and persons had in the Security Service and create a risk of other employees or former employees of that service seeking to publish similar information.
17. On 27 June 1986 ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions. On an application by O.G. and after an inter partes hearing on 11 July, Mr Justice Millett (sitting in the Chancery Division) decided that these injunctions should remain in force, but with various modifications. The defendants were given liberty to apply to vary or discharge the orders on giving twenty-four hours’ notice.
18. The reasons for Mr Justice Millett’s decision may be briefly summarised as follows.
(a) Disclosure by Mr Wright of information acquired as a member of the Security Service would constitute a breach of his duty of confidentiality.
(b) O.G. wished to be free to publish further information deriving directly or indirectly from Mr Wright and disclosing alleged unlawful activity on the part of the Security Service, whether or not it had been previously published.
(c) Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute.
(d) In resolving, as in the present case, a conflict between the public interest in preventing and the public interest in allowing such disclosure, the court had to take into account all relevant considerations, including the facts that this was an interlocutory application and not the trial of the action, that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights. In such circumstances, the conflict should be resolved in favour of restraint, unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial: an example would be when the proposed publication related to unlawful acts, the disclosure of which was required in the public interest. This could be regarded either as an exception to the American Cyanamid principles (see paragraph 10 above) or their application in special circumstances where the public interest was invoked on both sides.
(e) The Attorney General’s principal objection was not to the dissemination of allegations about the Security Service but to the fact that those allegations were made by one of its former employees, it being that particular fact which O.G. wished to publish. There was credible evidence (in the shape of Sir Robert Armstrong’s affidavits; see paragraph 16 above) that the appearance of confidentiality was essential to the operation of the Security Service and that the efficient discharge of its duties would be impaired, with consequent danger to national security, if senior officers were known to be free to disclose what they had learned whilst employed by it. Although this evidence remained to be tested at the substantive trial, the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial. Bearing in mind, inter alia, that the alleged unlawful activities had occurred some time in the past, there was, moreover, no compelling interest requiring publication immediately rather than after the trial.
In the subsequent stages of the interlocutory proceedings, both the Court of Appeal (see paragraphs 19 and 34 below) and all the members of the Appellate Committee of the House of Lords (see paragraphs 35-36 below) considered that this initial grant of interim injunctions by Mr Justice Millett was justified.
19. On 25 July 1986 the Court of Appeal dismissed an appeal by O.G. and upheld the injunctions, with minor modifications. It referred to the American Cyanamid principles (see paragraph 10 above) and considered that Mr Justice Millett had not misdirected himself or exercised his discretion on an erroneous basis. It refused leave to appeal to the House of Lords. It also certified the case as fit for a speedy trial.
As amended by the Court of Appeal, the injunctions ("the Millett injunctions") restrained O.G., until the trial of the action or further order, from:
"1. disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service and which they know, or have reasonable grounds to believe, to have come or been obtained, whether directly or indirectly, from the said Peter Maurice Wright;
2. attributing in any disclosure or publication made by them to any person any information concerning the British Security Service to the said Peter Maurice Wright whether by name or otherwise."
The orders contained the following provisos:
"1. this Order shall not prohibit direct quotation of attributions to Peter Maurice Wright already made by Mr Chapman Pincher in published works, or in a television programme or programmes broadcast by Granada Television;
2. no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in the Supreme Court of New South Wales unless prohibited by the Judge there sitting or which, after the trial there in action no. 4382 of 1985, is not prohibited from publication;
3. no breach of this Order shall be constituted by a fair and accurate report of proceedings in (a) either House of Parliament in the United Kingdom whose publication is permitted by that House; or (b) a court of the United Kingdom sitting in public."
20. On 6 November 1986 the Appellate Committee of the House of Lords granted leave to appeal against the Court of Appeal’s decision. The appeal was subsequently withdrawn in the light of the House of Lords decision of 30 July 1987 (see paragraphs 35-36 below).
21. The trial of the Government’s action in Australia (see paragraph 13 above) took place in November and December 1986. The proceedings were reported in detail in the media in the United Kingdom and elsewhere. In a judgment delivered on 13 March 1987 Mr Justice Powell rejected the Attorney General’s claim against Mr Wright and his publishers, holding that much of the information in Spycatcher was no longer confidential and that publication of the remainder would not be detrimental to the British Government or the Security Service. The undertakings not to publish were then discharged by order of the court.
The Attorney General lodged an appeal; after a hearing in the New South Wales Court of Appeal in the week of 27 July 1987, judgment was reserved. The defendants had given further undertakings not to publish whilst the appeal was pending.
22. On 27 April 1987 a major summary of certain of the allegations in Spycatcher, allegedly based on a copy of the manuscript, appeared in the United Kingdom national daily newspaper The Independent. Later the same day reports of that summary were published in The London Evening Standard and the London Daily News.
On the next day the Attorney General applied to the Queen’s Bench Division of the High Court for leave to move against the publishers and editors of these three newspapers for contempt of court, that is conduct intended to interfere with or prejudice the administration of justice. Leave was granted on 29 April. In this application (hereinafter referred to as "the Independent case") the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government, but independently and in his capacity as "the guardian of the public interest in the due administration of justice".
Reports similar to those of 27 April appeared on 29 April in Australia, in The Melbourne Age and the Canberra Times, and on 3 May in the United States of America, in The Washington Post.
23. On 29 April 1987 O.G. applied for the discharge of the Millett injunctions (see paragraph 19 above) on the ground that there had been a significant change of circumstances since they were granted. They referred to what had transpired in the Australian proceedings and to the United Kingdom newspaper reports of 27 April.
The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear these applications on 7 May but adjourned them pending the determination of a preliminary issue of law, raised in the Independent case (see paragraph 22 above), on which he thought their outcome to be largely dependent, namely "whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction". On 11 May, in response to the Vice-Chancellor’s invitation, the Attorney General pursued the proceedings in the Independent case in the Chancery Division of the High Court and the Vice-Chancellor ordered the trial of the preliminary issue.
24. On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr Wright’s Australian publishers the United States publication rights to Spycatcher, announced its intention of publishing the book in the latter country.
25. On 2 June 1987 the Vice-Chancellor decided the preliminary issue of law in the Independent case. He held that the reports that had appeared on 27 April 1987 (see paragraph 22 above) could not, as a matter of law, amount to contempt of court because they were not in breach of the express terms of the Millett injunctions and the three newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined. The Attorney General appealed.
26. On 15 June 1987 O.G., relying on the intended publication in the United States, applied to have the hearing of their application for discharge of the Millett injunctions restored (see paragraph 23 above). The matter was, however, adjourned pending the outcome of the Attorney General’s appeal in the Independent case, the hearing of which began on 22 June.
27. On 12 July 1987 the United Kingdom national Sunday newspaper The Sunday Times, which had purchased the British newspaper serialisation rights from Mr Wright’s Australian publishers and obtained a copy of the manuscript from Viking Penguin Incorporated in the United States, printed - in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher. It explained that this was timed to coincide with publication of the book in the United States, which was due to take place on 14 July.
On 13 July the Attorney General commenced proceedings for contempt of court against Times Newspapers Ltd, the publisher of The Sunday Times, and Mr Andrew Neil, its editor (hereinafter together referred to as "S.T."), on the ground that the publication frustrated the purpose of the Millett injunctions.
28. On 14 July 1987 Viking Penguin Incorporated published Spycatcher in the United States of America; some copies had, in fact, been put on sale on the previous day. It was an immediate best-seller. The British Government, which had been advised that proceedings to restrain publication in the United States would not succeed, took no legal action to that end either in that country or in Canada, where the book also became a best-seller.
29. A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops. The telephone number and address of such bookshops willing to deliver the book to the United Kingdom were widely advertised in that country. No steps to prevent such imports were taken by the British Government, which formed the view that although a ban was within their powers, it was likely to be ineffective. They did, however, take steps to prevent the book’s being available at United Kingdom booksellers or public libraries.
30. On 15 July 1987 the Court of Appeal announced that it would reverse the judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above). Its reasons, which were handed down on 17 July, were basically as follows: the purpose of the Millett injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against O.G.; the conduct of The Independent, The London Evening Standard and the London Daily News could, as a matter of law, constitute a criminal contempt of court because publication of that material would destroy that confidentiality and, hence, the subject-matter of those actions and therefore interfere with the administration of justice. The Court of Appeal remitted the case to the High Court for it to determine whether the three newspapers had acted with the specific intent of so interfering (sections 2(3) and 6(c) of the Contempt of Court Act 1981).
31. The Court of Appeal refused the defendants leave to appeal to the House of Lords and they did not seek leave to appeal from the House itself. Neither did they apply to the High Court for modification of the Millett injunctions. The result of the Court of Appeal’s decision was that those injunctions were effectively binding on all the British media, including The Sunday Times.
32. S.T. made it clear that, unless restrained by law, they would publish the second instalment of the serialisation of Spycatcher on 19 July 1987. On 16 July the Attorney General applied for an injunction to restrain them from publishing further extracts, maintaining that this would constitute a contempt of court by reason of the combined effect of the Millett injunctions and the decision in the Independent case (see paragraph 30 above).
On the same day the Vice-Chancellor granted a temporary injunction restraining publication by S.T. until 21 July 1987. It was agreed that on 20 July he would consider the application by O.G. for discharge of the Millett injunctions (see paragraph 26 above) and that, since they effectively bound S.T. as well, the latter would have a right to be heard in support of that application. It was further agreed that he would also hear the Attorney General’s claim for an injunction against S.T. and that that claim would fail if the Millett injunctions were discharged.
33. Having heard argument from 20 to 22 July 1987, the Vice-Chancellor gave judgment on the last-mentioned date, discharging the Millett injunctions and dismissing the claim for an injunction against S.T.
The Vice-Chancellor’s reasons may be briefly summarised as follows.
(a) There had, notably in view of the publication in the United States (see paragraphs 28-29 above), been a radical change of circumstances, and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances.
(b) Having regard to the case-law and notwithstanding the changed circumstances, it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against O.G. at the substantive trial; accordingly, the ordinary American Cyanamid principles (see paragraph 10 above) fell to be applied.
(c) Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers, it had to be determined where the balance of convenience lay; the preservation of confidentiality should be favoured unless another public interest outweighed it.
(d) Factors in favour of continuing the injunctions were: the proceedings were only interlocutory; there was nothing new or urgent about Mr Wright’s allegations; the injunctions would bind all the media, so that there would be no question of discrimination; undertakings not to publish were still in force in Australia; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality; to continue the injunctions would discourage others from following Mr Wright’s example.
(e) Factors in favour of discharging the injunctions were: publication in the United States had destroyed a large part of the purpose of the Attorney General’s actions; publications in the press, especially those concerning allegations of unlawful conduct in the public service, should not be restrained unless this was unavoidable; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose.
(f) The matter was quite nicely weighted and in no sense obvious but, with hesitation, the balance fell in favour of discharging the injunctions.
The Attorney General immediately appealed against the Vice-Chancellor’s decision; pending the appeal the injunctions against O.G., but not the injunction against S.T. (see paragraph 32 above), were continued in force.
34. In a judgment of 24 July 1987 the Court of Appeal held that:
(a) the Vice-Chancellor had erred in law in various respects, so that the Court of Appeal could exercise its own discretion;
(b) in the light of the American publication of Spycatcher, it was inappropriate to continue the Millett injunctions in their original form;
(c) it was, however, appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to Mr Wright on security matters, but to permit "a summary in very general terms" of his allegations.
The members of the Court of Appeal considered that continuation of the injunctions would: serve to restore confidence in the Security Service by showing that memoirs could not be published without authority (Sir John Donaldson, Master of the Rolls); serve to protect the Attorney General’s rights until the trial (Lord Justice Ralph Gibson); or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence (Lord Justice Russell).
The Court of Appeal gave leave to all parties to appeal to the House of Lords.
35. After hearing argument from 27 to 29 July 1987 (when neither side supported the Court of Appeal’s compromise solution), the Appellate Committee of the House of Lords gave judgment on 30 July, holding, by a majority of three (Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner) to two (Lord Bridge of Harwich - the immediate past Chairman of the Security Commission - and Lord Oliver of Aylmerton), that the Millett injunctions should continue. In fact, they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on 23 November 1987 (see paragraph 39 below).
The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the Australian proceedings (see paragraph 19 above), since the injunctions would be circumvented if English newspapers were to reproduce passages from Spycatcher read out in open court. In the events that happened, this deletion had, according to the Government, no practical incidence on the reporting of the Australian proceedings.
36. The members of the Appellate Committee gave their written reasons on 13 August 1987; they may be briefly summarised as follows.
(i) The object of the Attorney General’s actions against O.G. was the protection of an important public interest, namely the maintenance as far as possible of the secrecy of the Security Service; as was recognised in Article 10 para. 2 (art. 10-2) of the Convention, the right to freedom of expression was subject to certain exceptions, including the protection of national security.
(ii) The injunctions in issue were only temporary, being designed to hold the ring until the trial, and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions.
(iii) The view taken in the courts below, before the American publication, that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge.
(iv) Publication in the United States had weakened that case, but it remained arguable; it was not clear whether, as a matter of law, that publication had caused the newspapers’ duty of non-disclosure to lapse. Although the major part of the potential damage adverted to by Sir Robert Armstrong (see paragraph 16 above) had already been done, the courts might still be able to take useful steps to reduce the risk of similar damage by other Security Service employees in the future. This risk was so serious that the courts should do all they could to minimise it.
(v) The only way to determine the Attorney General’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross-examination.
(vi) Immediate discharge of the injunctions would completely destroy the Attorney General’s arguable case at the interlocutory stage, without his having had the opportunity of having it tried on appropriate evidence.
(vii) Continuing the injunctions until the trial would, if the Attorney General’s claims then failed, merely delay but not prevent the newspapers’ right to publish information which, moreover, related to events that had taken place many years in the past.
(viii) In the overall interests of justice, a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to one which might result in permanent and irrevocable damage to the cause of the Attorney General.
(i) The appeal involved a conflict between the right of the public to be protected by the Security Service and its right to be supplied with full information by the press. It therefore involved consideration of the Convention, the question being whether the interference constituted by the injunctions was, on 30 July 1987, necessary in a democratic society for one or more of the purposes listed in Article 10 para. 2 (art. 10-2).
(ii) In terms of the Convention, the restraints were necessary in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary. The restraints would prevent harm to the Security Service, notably in the form of the mass circulation, both now and in the future, of accusations to which its members could not respond. To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the Service.
(i) It was accepted by all members of the Appellate Committee that: the Attorney General had an arguable case for a permanent injunction; damages were a worthless remedy for the Crown which, if the Millett injunctions were not continued, would lose forever the prospect of obtaining permanent injunctions at the trial; continuation of the Millett injunctions was not a "final locking-out" of the press which, if successful at the trial, would then be able to publish material that had no present urgency; there was a real public interest, that required protection, concerned with the efficient functioning of the Security Service and it extended, as was not challenged by the newspapers, to discouraging the use of the United Kingdom market for the dissemination of unauthorised memoirs of Security Service officers.
(ii) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial, for that would sweep aside the public-interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts.
(i) The case in favour of maintaining the Millett injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out.
(ii) Since the Spycatcher allegations were now freely available to the public, it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information.
(iii) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers, but the question was whether the Millett injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech. The argument that their continuation would have a deterrent effect was of minimal weight.
(iv) The attempt to insulate the British public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and, if pursued, would lead to the Government’s condemnation and humiliation by the European Court of Human Rights.
(i) Mr Justice Millett’s initial order was entirely correct.
(ii) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations, but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher. It was questionable whether it was right to use the injunctive remedy against the newspapers (who had not been concerned with that publication) for the remaining purpose which the injunctions might serve, namely punishing Mr Wright and providing an example to others.
(iii) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial. However, in the light of the public availability of the Spycatcher material, it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime. No arguable case for permanent injunctions at the trial therefore remained and the Millett injunctions should accordingly be discharged.
37. On 24 September 1987 the New South Wales Court of Appeal delivered judgment dismissing the Attorney General’s appeal (see paragraph 21 above); the majority held that his claim was not justiciable in an Australian court since it involved either an attempt to enforce indirectly the public laws of a foreign State or a determination of the question whether publication would be detrimental to the public interest in the United Kingdom.
The Attorney General appealed to the High Court of Australia. In view of the publication of Spycatcher in the United States and elsewhere, that court declined to grant temporary injunctions restraining its publication in Australia pending the hearing; it was published in that country on 13 October. The appeal was dismissed on 2 June 1988, on the ground that, under international law, a claim - such as the Attorney General’s - to enforce British governmental interests in its security service was unenforceable in the Australian courts.
Further proceedings brought by the Attorney General against newspapers for injunctions were successful in Hong Kong but not in New Zealand.
38. In the meantime publication and dissemination of Spycatcher and its contents continued worldwide, not only in the United States (around 715,000 copies were printed and nearly all were sold by October 1987) and in Canada (around 100,000 copies printed), but also in Australia (145,000 copies printed, of which half were sold within a month) and Ireland (30,000 copies printed and distributed). Nearly 100,000 copies were sent to various European countries other than the United Kingdom and copies were distributed from Australia in Asian countries. Radio broadcasts in English about the book were made in Denmark and Sweden and it was translated into twelve other languages, including ten European.
39. On 27 October 1987 the Attorney General instituted proceedings against S.T. for breach of confidence; in addition to injunctive relief, he sought a declaration and an account of profits. The substantive trial of that action and of his actions against O.G. (see paragraph 15 above) - in which, by an amendment of 30 October, he now claimed a declaration as well as an injunction - took place before Mr Justice Scott in the High Court in November-December 1987. He heard evidence on behalf of all parties, the witnesses including Sir Robert Armstrong (see paragraph 16 above). He also continued the interlocutory injunctions, pending delivery of his judgment.
40. Mr Justice Scott gave judgment on 21 December 1987; it contained the following observations and conclusions.
(a) The ground for the Attorney General’s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of the Security Service.
(b) Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential, the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure.
(c) Account should be taken of Article 10 (art. 10) of the Convention and the judgments of the European Court establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a "pressing social need" for the limitation and it was "proportionate to the legitimate aims pursued".
(d) Mr Wright owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MI5. He broke that duty by writing Spycatcher and submitting it for publication, and the subsequent publication and dissemination of the book amounted to a further breach, so that the Attorney General would be entitled to an injunction against Mr Wright or any agent of his, restraining publication of Spycatcher in the United Kingdom.
(e) O.G. were not in breach of their duty of confidentiality, created by being recipients of Mr Wright’s unauthorised disclosures, in publishing their respective articles of 22 and 23 June 1986 (see paragraph 14 above): the articles were a fair report in general terms of the forthcoming trial in Australia and, furthermore, disclosure of two of Mr Wright’s allegations was justified on an additional ground relating to the disclosure of "iniquity".
(f) S.T., on the other hand, had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on 12 July 1987 (see paragraph 27 above), since those extracts contained certain material which did not raise questions of public interest outweighing those of national security.
(g) S.T. were liable to account for the profits accruing to them as a result of the publication of that instalment.
(h) The Attorney General’s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since July 1987 had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book; as regards this issue, a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming.
(i) The Attorney General was not entitled to a general injunction restraining future publication of information derived from Mr Wright or other members of the Security Service.
After hearing argument, Mr Justice Scott imposed fresh temporary injunctions pending an appeal to the Court of Appeal; those injunctions contained a proviso allowing reporting of the Australian proceedings (see paragraphs 19 and 35 above).
41. On appeal by the Attorney General and a cross-appeal by S.T., the Court of Appeal (composed of Sir John Donaldson, Master of the Rolls, Lord Justice Dillon and Lord Justice Bingham) affirmed, on 10 February 1988, the decision of Mr Justice Scott.
However, Sir John Donaldson disagreed with his view that the articles in the Observer and The Guardian had not constituted a breach of their duty of confidence and that the claim for an injunction against these two newspapers in June 1986 was not "proportionate to the legitimate aim pursued". Lord Justice Bingham, on the other hand, disagreed with Mr Justice Scott’s view that S.T. had been in breach of duty by publishing the first instalment of extracts from Spycatcher, that they should account for profits and that the Attorney General had been entitled, in the circumstances as they stood in July 1987, to injunctions preventing further serialisation.
After hearing argument, the Court of Appeal likewise granted fresh temporary injunctions, pending an appeal to the House of Lords; O.G. and S.T. were given liberty to apply for variation or discharge if any undue delay arose.
42. On 13 October 1988 the Appellate Committee of the House of Lords (Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle) also affirmed Mr Justice Scott’s decision. Dismissing an appeal by the Attorney General and a cross-appeal by S.T., it held:
"(i) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information; that in seeking to restrain the disclosure of government secrets the Crown must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted; that since the world-wide publication of Spycatcher had destroyed any secrecy as to its contents, and copies of it were readily available to any individual who wished to obtain them, continuation of the injunctions was not necessary; and that, accordingly, the injunctions should be discharged.
(ii) (Lord Griffiths dissenting) that the articles of 22 and 23 June [1986] had not contained information damaging to the public interest; that the Observer and The Guardian were not in breach of their duty of confidentiality when they published [those] articles; and that, accordingly, the Crown would not have been entitled to a permanent injunction against both newspapers.
(iii) That The Sunday Times was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on 12 July 1987; that it was not protected by either the defence of prior publication or disclosure of iniquity; that imminent publication of the book in the United States did not amount to a justification; and that, accordingly, The Sunday Times was liable to account for the profits resulting from that breach.
(iv) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done; that no injunction should be granted against the Observer and The Guardian restraining them from reporting on the contents of the book; and that (Lord Griffiths dissenting) no injunction should be granted against The Sunday Times to restrain serialising of further extracts from the book.
(v) That members and former members of the Security Service owed a lifelong duty of confidence to the Crown, and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in Spycatcher derived from any member or former member of the Security Service."
43. The substantive trial of the Attorney General’s actions for contempt of court against The Independent, The London Evening Standard, the London Daily News (see paragraph 22 above), S.T. (see paragraph 27 above) and certain other newspapers took place before Mr Justice Morritt in the High Court in April 1989. On 8 May he held, inter alia, that The Independent and S.T. had been in contempt of court and imposed a fine of £50,000 in each case.
44. On 27 February 1990 the Court of Appeal dismissed appeals by the latter two newspapers against the finding that they had been in contempt but concluded that no fines should be imposed. A further appeal by S.T. against the contempt finding was dismissed by the Appellate Committee of the House of Lords on 11 April 1991.
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-5648
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: THE MUNICIPAL SECTION OF ANTILLY v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant is the Municipal Section of Antilly in the municipality of Argilly (Côte-d’Or). It is represented before the Court by Mrs Defosse, of the Dijon Bar.
The community of Antilly has existed since time immemorial and owns property (forests, pastures, a town hall), its title to which is undisputed.
At the time of the French Revolution the municipality of Argilly was created, incorporating the community of Antilly. In accordance with the law, the latter was established as a section of the municipality and remained the owner of the property it had owned previously.
On 12 February 1994 the Board of Management of the Municipal Section of Antilly, which managed the section’s property and rights, resolved to bid for a plot of farm land in the municipality of Argilly and within the municipal section of Antilly.
On 13 October 1994 the prefect of the Côte d’Or département applied to the Dijon Administrative Court to have the municipal section’s resolution of 12 February 1994 set aside.
In a judgment of 21 January 1995 the Dijon Administrative Court set aside the resolution of 12 February 1994 on the ground that the municipal section had no power to take a decision on the acquisition of land.
On 20 March 1995 the Board of Management of the Municipal Section of Antilly applied to the Conseil d’Etat to have that judgment varied or quashed. It firstly contested that it lacked jurisdiction to acquire real property. It further argued that the impugned judgment was confiscatory visà-vis the municipal section and consequently infringed Article 1 of Protocol No. 1 to the Convention. It lastly alleged that it had not had a fair hearing, contrary to Article 6 of the Convention.
On 12 December 1997 the Conseil d’Etat dismissed the Municipal Section of Antilly’s application holding as follows:
“The fact, asserted by [the applicant municipal section], that it had not been possible, for want of sufficient financial resources to instruct a lawyer, for it to properly prepare its defence ... has no bearing on the lawfulness of the judgment being challenged.
The proceedings in the Administrative Court were adversarial, in accordance with the provisions of the Administrative Courts and Administrative Courts of Appeal Code, and it cannot avail the applicant municipal section to pray in aid the provisions of Article 6 of the ... Convention ..., which do not apply in the instant case.
... it follows [from the provisions of Article L. 151-6 of the Municipalities Code] that the acquisition of property is not within the powers of the board of management of a municipal section.
The impugned judgment, which denied the [applicant municipal section] the right to acquire a parcel of land, did not infringe the rights it had over the property it owned; the ground of appeal based on the judgment’s violation of the Constitution and of the provisions of the ... Convention ... which protect the right of property accordingly fails.”
French Constitution – Part XII – Local and regional authorities – Article 72
“The local and regional authorities of the Republic are the municipalities, the départements and the overseas territories. Any other local or regional authority shall be created by law.
Those territories shall be freely administered by elected councils and under the conditions provided for by the law.”
Municipalities Code – Book V – Interests specific to certain categories of inhabitant
Chapter 1 – Municipal section
“Any part of a municipality permanently and exclusively vested with property or rights distinct from those of the municipality shall constitute a municipal section.
A municipal section shall have legal personality.”
“The property and rights of the section shall be managed by the municipal council, the mayor and, in the cases provided for by Articles L. 151-6, L. 151-7, L. 151-8, L.151-9, L 151-11, L. 151-15 and L. 151-18 of this Code, by a board of management and its chairman.”
“...
The members of the board of management, who are to be chosen from among the persons eligible to stand for election to the municipal council of the municipality to which the municipal section belongs, shall be elected according to the same rules as the municipal councillors of municipalities with under 3,500 inhabitants...
The mayor of the municipality to which the municipal section belongs shall be a member of the board of management ex officio.”
“Subject to the provisions of Article L. 151-15, the board of management shall decide on the following matters:
1. Contracts entered into with the municipality to which it belongs or another municipal section;
2. Sale, exchange or lease for nine years or more of the section’s property;
3. Change in the use of that property;
4. Settlements and legal proceedings;
5. Acceptance of gifts;
6. Membership of a landowners’ association or any other financial pooling organisation;
7. Setting up of a union of sections; and
8. Appointment of representatives to represent the municipal section;
The chairman of the board of management shall take the necessary steps to ensure the execution of those decisions.
...”.
COMPLAINTS
1. Relying on Article 6 § 1 of the Convention, the applicant municipal section complained of not having had a fair hearing because it had not been possible for it to prepare its defence properly for want of sufficient financial resources, unlike the public authorities which had been its opponents in the proceedings. In its submission, that inequality of means amounted to a breach of the principle of the equality of arms.
2. The applicant municipal section further considered itself the victim of a violation of its right to the peaceful enjoyment of its possessions as secured by Article 1 of Protocol No. 1 to the Convention.


ITEMID: 001-71637
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGESELLSCHAFT MBH v. AUSTRIA  (N° 3)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant is the owner and publisher of the weekly magazine “Profil”.
10. In its issue 25/1998 of 15 June 1998 the applicant company published an article about Mr R., at that time a member of Parliament, and his cohabitee Mrs G. The article, with the title “Diary of an escape” and the subtitle “Report. Several myths are entwined around P. R.’s trip to Brazil. The reconstruction of a banal reality”, described the couple’s flight from Austria in April 1998 as Mr R. was suspected of having committed the offences of aggravated fraud (Betrug) and fraudulent conversion (Untreue). After an international arrest warrant had been issued, Mr R. was arrested in Brazil on 5 June 1998. At the time of the events, great public interest in the criminal proceedings against Mr R. existed. After Mr R.’s arrest, Mrs G. had given interviews on these events. The article was accompanied by a photo, which appeared on another page, showing Mrs G. standing beside Mr R.
11. The article and its context, namely a short text accompanying photos showing the couple’s hotel and a bar in Brazil, contained the following statements:
“...Thus, the Lower Austrian mutation of ‘Bonnie and Clyde’ started on the last part of their trip, a four hour bus ride... (Also brach die niederösterreichische Mutation von Bonnie and Clyde zur letzten Etappe, einer vierstündigen Busfahrt...auf.)
...The first two weeks, ‘Bonnie and Clyde’ hardly ever left the hotel... (Die ersten beiden Wochen verlassen ‘Bonnie und Clyde’ das Haus praktisch nie.)
...’Bonnie and Clyde’ from Lower Austria wish to rent the Mayor’s bar... (‘Bonnie und Clyde’ aus Niederösterreich wollen die Bar des Bürgermeisters pachten.)
...’Bonnie and Clyde’ are dreaming of a decent life as pub owners... (‘Bonnie und Clyde’ träumen von einem bescheidenen Leben als Barbetreiber.)”
The article, when describing the arrest of Mr R., further stated :
“C. G., against whom no suspicion exists, stays behind. (Zurück bleibt C.G., gegen die nichts vorliegt.)”
12. On 20 November 1998 Mrs G. brought proceedings against the applicant company claiming compensation for defamation under Section 6 of the Media Act (Mediengesetz). Further she requested supplementary measures under the Media Act, such as the publication of the judgment. She stressed that the applicant company, by publishing the article at issue, had committed the offence of defamation under the Criminal Code (Üble Nachrede).
13. She argued that the comparison with the famous criminals ‘Bonnie and Clyde’ from the thirties, whose story was the basis of a film produced in the sixties, could have given the impression that she was also involved in the offences of Mr R.
14. On 7 April 1999 the Wiener Neustadt Regional Court (Landesgericht) dismissed Mrs G.’s claim. It found that the average reader would have understood “Bonnie and Clyde” as a synonym for a couple on the run and that it had been a pictorial description with a humorous and entertaining message. It considered that the average reader would have connected “Bonnie” with a woman who follows her partner “through thick and thin” and that the characterisation as “Bonnie” did not amount to an accusation of having participated in the offences of Mr R.
15. On 4 November 1999 the Vienna Court of Appeal (Oberlandesgericht) quashed this decision and remitted the case to the Regional Court. It observed that “Bonnie and Clyde” had been violent criminals and found that the established connection between Mrs G. and “Bonnie” created an “inherent statement of having participated in criminal acts” even though “it had been expressly stated in the article that no suspicion had existed against Mrs G.”. It, therefore, concluded that the applicant company had committed the offence of defamation under Section 111 § 1 of the Criminal Code (Strafgesetzbuch) by publishing the article at issue and stated that its finding had to be taken into account by the Regional Court in its new decision.
16. On 3 February 2000 the Regional Court sentenced the applicant company to pay compensation of ATS 20,000 (1,453.46 euros) for defamation and to reimburse Ms G.’s costs of the proceedings and ordered it to publish an extract of its judgment in its magazine. Following the Court of Appeal’s line of argument it found, referring to the above mentioned passages of the incriminated article, that:
“... the well-known movie ‘Bonnie and Clyde’ described two ordinary people who make the American dream of liberty and wealth come true by stealing cars, robbing banks and killing people. (...) The reader primarily associates Bonnie with a criminal who had, together with her partner, robbed innumerable banks and had killed 14 persons within two years. (...) Nobody would have connected Bonnie only with a naive angel, who followed her partner devotedly but, rather, with a woman who would kill to assist the common purpose ‘escape’. (...) Beyond doubt the reader is forced to make a connection with capital crime. (...) The allegation of participating in criminal offences constitutes defamation within the meaning of Section 111 § 1 of the Criminal Code.”
17. On 22 March 2000 the applicant company filed an appeal and stressed, inter alia, that the incriminating passages had to be considered in connection with the article as a whole. It submitted that the article was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts.
18. On 9 August 2000 the Court of Appeal dismissed the appeal and confirmed the Regional Court’s decision as a whole.
19. On 9 February 1999 Mrs G. applied to the Wiener Neustadt Regional Court for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company. She requested that the applicant company be ordered to refrain from publishing her picture without her consent in connection with reporting on the criminal proceedings against Mr R. or, in the alternative, that the applicant company be ordered to refrain from publishing her picture without her consent in connection with referring to her and Mr R. as “Bonnie and Clyde”. Furthermore, she requested an order for the publication of the judgment in the applicant company’s magazine.
20. She argued that the publication of her picture in connection with a report on the criminal proceedings against Mr R. violated her legitimate interests under Section 78 of the Copyright Act and that the comparison with the famous criminals “Bonnie and Clyde” could have given the impression that she had been involved in the offences of which Mr R. was accused.
21. The applicant company, in its observations, argued that the report at issue expressly mentioned that there were no criminal proceedings pending against Mrs G. and that the report was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts. Moreover, she had willingly given interviews to the media and had her pictures taken by journalists. As regards the comparison of Mrs G. with “Bonnie”, the applicant company submitted that the reader of its magazine understood “Bonnie and Clyde” as a synonym for a couple on the run and not for violent criminals. Finally, it contended that the great public interest in the events justified the publication of Mrs G.’s picture.
22. On 19 February 1999 the Wiener Neustadt Regional Court granted an interim injunction (einstweilige Verfügung). It found the measure justified as the interest in the publication of Mrs G.’s picture violated her legitimate interests.
23. On 27 April 1999 the Court of Appeal allowed the applicant company’s appeal and dismissed Mrs G.’s application.
24. On 13 September 1999 the Supreme Court (Oberster Gerichtshof) partly allowed Mrs G.’s extraordinary appeal on points of law and granted the interim injunction she had requested in the alternative, i.e. it ordered the applicant company to refrain from publishing Mrs G.’s picture without her consent in connection with referring to her and Mr R. as “Bonnie and Clyde”.
25. The Supreme Court observed that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests and that the publication of her picture had to be considered together with the content of the published report. The court referred further to its case-law in which it had found that the publication of the picture of a spouse of a suspect was not of any informative value and that the concerned spouse’s interest in secrecy, therefore, outweighed the interest of information. The court found, however, that in the present case Mrs G. was far more involved in the case of Mr R. than simply being Mr R.’s cohabitee or girlfriend, as she had prepared the escape with him and had finally escaped with Mr R. Therefore, the applicant company’s interest in publishing her picture in principle outweighed Mrs G.’s legitimate interests in secrecy.
26. The court then argued that the text of the article at issue, compared Mrs G. with the female partner of the violent criminals “Bonnie and Clyde” and could give the impression to the readers of the magazine that Mrs G. as “Bonnie” had been involved in the criminal offences of her partner. The Supreme Court, thus, concluded that, although it seemed that Mrs G. had consented to the publication of her picture in connection with the criminal proceedings against Mr R., her legitimate interests were violated by the publication of her photo in combination with a comparison with the criminal “Bonnie”.
27. On 2 February 2001 the Wiener Neustadt Regional Court granted a permanent injunction prohibiting the applicant company from publishing Mrs G.’s picture while comparing her and Mr R. with “Bonnie and Clyde” or while connecting her with the commission of criminal offences.
28. On 3 May 2001 the Court of Appeal dismissed the applicant company’s appeal and ordered the applicant company to pay Mrs G.’s costs of the appeal proceedings.
29. On 12 September 2001 the Supreme Court, referring to its decision of 13 September 1999, rejected the applicant company’s extraordinary appeal on points on law. This decision was served on 2 October 2001.
30. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code, as follows:
“1. As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”
31. Section 78 of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
This provision has been interpreted in the Supreme Court’s case-law. In particular the Supreme Court has found that in determining whether the publication of a person’s picture violated his or her “legitimate interests” regard is to be had to the accompanying text. Where the publisher of the picture claims that there was a public interest in its publication, the courts have to carry out a weighing of the respective interests involved. As regards reporting on criminal cases, the Supreme Court has constantly held that there is no predominant public interest in the publication of the suspect’s picture if it has no additional independent information value. The only effect is that the intensity of such reporting is increased by attaching the suspect’s picture and, thus, making his or her appearance known to the public at large (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 32, ECHR 2000-I, with reference to MuR 1990, p. 224; SZ 63/75, p. 373; MuR 1995, p. 64; MuR 1996, p. 33).
VIOLATED_ARTICLES: 10


ITEMID: 001-110704
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF BAKHSHIYEV AND OTHERS v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Julia Laffranque;Khanlar Hajiyev;Peer Lorenzen
TEXT: 4. All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers (yaşayış sahəsi orderi) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix - Table I).
5. In all cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the ArmenianAzerbaijani conflict over Nagorno-Karabakh.
6. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats.
7. On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by various domestic courts, which ordered the eviction of the IDPs from their flats.
8. The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced.
9. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-60026
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ČONKA v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;No violation of Art. 5-2;Violation of Art. 5-4;Violation of P4-4;No violation of Art. 13+3;Violation of Art. 13+P4-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. Mr Ján Čonka, Mrs Mária Čonková, Miss Nad'a Čonková and Miss Nikola Čonková are Slovakian nationals of Roma origin who were born in 1960, 1961, 1985 and 1991 respectively. The first two applicants are the parents of the third and fourth applicants.
8. The applicants say that on several occasions between March and November 1998 they were violently assaulted by skinheads in the Slovak Republic. Indeed, in November 1998 Mr Čonka had been so seriously injured in an assault that he had had to be hospitalised. The police had been called but had refused to intervene. Several days later Mr and Mrs Čonka had been subjected to renewed insults and threats by skinheads, but the police had again refused to intervene.
As a result of those constant threats, the applicants had decided to flee Slovakia and travel to Belgium, where they had arrived at the beginning of November 1998: Mr Čonka and the two minor children on 6 November and Mrs Čonka two days later.
9. On 12 November 1998 the applicants requested political asylum in Belgium.
10. On 3 March 1999 their applications for asylum were declared inadmissible by the Minister of the Interior through the Directorate-General of the Aliens Office on the ground that they had not produced sufficient evidence to show that their lives were at risk in Slovakia for the purposes of the Geneva Convention relating to the Status of Refugees. The decisions refusing permission to remain in Belgium were accompanied by a decision refusing permission to enter the territory itself, endorsed with an order to leave the territory within five days.
11. On 5 March 1999 the applicants lodged an appeal under the urgent-applications procedure with the Commissioner-General for Refugees and Stateless Persons (“the Commissioner-General”) against the decisions refusing them permission to remain in Belgium.
12. On 14 April 1999 Mr Čonka was invited to attend the Commissioner-General's Office to set out his grounds for seeking asylum. He failed to keep the appointment.
13. On 23 April 1999 Mrs Čonková, assisted by an interpreter, was heard by representatives of the Commissioner-General's Office at Ghent Prison, where she was in custody pending trial. On 17 May 1999 she was sentenced to eight months' imprisonment for theft by the Ghent Criminal Court.
14. On 18 June 1999 the Commissioner-General's Office upheld the decision of the Aliens Office refusing the applicants permission to remain. Its decision in Mr Čonka's case was based on his failure to attend his appointment without showing due cause. As regards Mrs Čonková, in some two pages of reasons the Commissioner-General pointed out major discrepancies in her deposition and expressed serious doubts about her credibility.
For example, Mrs Čonková had declared among other things that on 4 November 1998 her husband, Mr Čonka, had been assaulted by skinheads so violently that he had had to be taken to hospital. The police had been called but had not come out. That incident had been the direct cause of their decision to flee Slovakia. However, the Commissioner-General considered that statement to be refuted by the fact that the travel tickets had been issued before the above incident of 4 November: Mrs Čonková's plane ticket on 2 October and her husband's and their children's bus tickets for the journey to Belgium on 2 November 1998. Furthermore, Mrs Čonková's account of the incident did not match her stepdaughter's, in particular on the important issue of whether the police had attended the scene.
The Commissioner-General stipulated in his decisions that the applicants could be deported to the country from which they had fled (Slovakia), and that for the purposes of calculating the five-day period for leaving the territory, which had been suspended by the application under the urgent procedure, time began to run again from the date of service of the decisions on the applicants.
15. On 24 June 1999 Mrs Čonková was released and a new order was served on her to leave the territory within five days, that is to say by midnight on 29 June.
16. On 3 August 1999 the applicants lodged applications with the Conseil d'Etat for judicial review of the decision of 18 June 1999 and for a stay of execution under the ordinary procedure. They also applied for legal aid.
17. On 23 September 1999 the Conseil d'Etat dismissed the applications for legal aid on the grounds that they had not been accompanied by the means certificate required by Article 676-3 of the Judicial Code, a photocopy, rather than the original, of the certificate having been enclosed with Mrs Čonková's application. Consequently, the applicants were invited by the orders refusing legal aid to pay the court fees within fifteen days after service. As they failed to respond to that invitation, their applications for judicial review and for a stay of execution were struck out of the list on 28 October 1999.
18. At the end of September 1999 the Ghent police sent a notice to a number of Slovakian Roma families, including the applicants, requiring them to attend the police station on 1 October 1999. The notice was drafted in Dutch and Slovak and stated that their attendance was required to enable the files concerning their applications for asylum to be completed.
19. At the police station, where a Slovak-speaking interpreter was also present, the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and their detention for that purpose. The documents served, which were all in identical terms, informed the recipients that they could apply to the Conseil d'Etat for judicial review of the deportation order and for a stay of execution – provided that they did so within sixty days of service of the decision – and to the committals division (chambre du conseil) of the criminal court against the order for their detention. According to the Government, some of the aliens concerned were nevertheless allowed to leave the police station of their own free will on humanitarian grounds or for administrative reasons.
20. A few hours later the applicants and other Roma families, accompanied by an interpreter, were taken to a closed transit centre, known as “Transit Centre 127 bis”, at Steenokkerzeel near Brussels Airport. It appears that the interpreter only remained at the centre briefly. According to the Government, he could have been recalled to the centre at the applicants' request. The applicants say that they were told that they had no further remedy against the deportation order.
21. While at the centre, the Slovakian families received visits from a delegation of Belgian members of Parliament, the Slovakian Consul, delegates of various non-governmental organisations and doctors. At 10.30 p.m. on Friday 1 October 1999 the applicants' counsel, Mr van Overloop, was informed by the President of the Roma Rights League that his clients were in custody. Taking the view that he was still instructed by them, Mr van Overloop sent a fax on 4 October 1999 to the Aliens Office informing it that the applicants were in Transit Centre 127 bis awaiting repatriation to Slovakia. He requested that no action be taken to deport them, as they had to take care of a member of their family who was in hospital. However, Mr van Overloop did not appeal against the deportation or detention orders made on 29 September 1999.
22. On 5 October 1999 the families concerned were taken to Melsbroek Military Airport, where the seat numbers allocated to them in the aircraft were marked on their hands with a ballpoint pen. The aircraft left Belgium for Slovakia at 5.45 p.m.
23. Shortly afterwards the Minister of the Interior declared in reply to a parliamentary question put on 23 December 1999:
“Owing to the large concentration of asylum-seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia. ... Reports I have received from the mayor of Ghent and the Director-General of the Aliens Office indicate that the operation was properly prepared, even if the unfortunate wording of the letter sent by the Ghent police to some of the Slovaks may have been misleading. Both the Aliens Office and the Ghent Police Department were surprised by the large number of Slovaks who responded to the notice sent to them. That factual circumstance resulted in their being detained in Transit Centre 127 bis for deportation a few days later. ...”
24. The procedure relating to the recognition of refugee status is governed under Belgian law by the Law of 15 December 1980 on the entry, residence, settlement and expulsion of aliens (“the Aliens Act”) and by the Royal Decree of 8 October 1981 on the entry, residence, settlement and expulsion of aliens.
The procedure for according refugee status is in two stages. The first concerns admissibility for refugee status, while the second concerns eligibility for such status.
The authorities with jurisdiction to take part in the examination of the issue of admissibility are the Aliens' Office and, on appeal, the Commissioner-General for Refugees and Stateless Persons, as administrative authorities, and the Conseil d'Etat, which hears applications for judicial review. The relevant authorities at the eligibility stage are the Commissioner-General for Refugees and Stateless Persons, as the administrative authority, the Permanent Tribunal for Refugees' Appeals, as an administrative tribunal, and the Conseil d'Etat, which hears administrative appeals on points of law. Lastly, the committals division (chambre du conseil) of the criminal court has jurisdiction to hear appeals against orders depriving aliens of their liberty during or at the end of the proceedings (see below).
25. The provisions of the Aliens Act applicable in the instant case read as follows:
“Except where permitted by international treaty, statute or royal decree, aliens may not stay more than three months in the Kingdom, unless a different period is stipulated in the visa or the authorisation in lieu stamped in their passport or on the travel document issued in lieu thereof.
...”
“Without prejudice to any more favourable provision in any international treaty, the Minister or his or her delegate may order an alien who is not authorised or has not been given permission to remain for more than three months or to settle in the Kingdom to leave the territory before a set date:
...
(2) if the alien has stayed in the Kingdom beyond the period fixed in accordance with section 6, or is unable to establish that the period has not expired;
...
In the same sets of circumstances, if the Minister or his or her delegate considers it necessary, they may have the alien deported.
The alien may be detained for that purpose for the time strictly necessary for the execution of the measure provided that the period of detention shall not exceed two months.”
“Any order to leave the territory or deportation order shall state which provision of section 7 is being applied.”
Section 57/2
“The Commissioner-General's Office for Refugees and Stateless Persons is hereby established. It shall be attached to the Ministry and shall comprise a Commissioner-General for Refugees and Stateless Persons and two deputies. The Commissioner-General and his or her deputies shall be wholly independent in taking their decisions and expressing their opinions.”
“The Commissioner-General shall be in charge of the Commissioner-General's Office for Refugees and Stateless Persons.
The Commissioner-General shall be appointed by the King by a decree approved by the Cabinet on a proposal by the Minister.
The Commissioner-General shall be appointed for a period of five years. His or her term in office may be renewed.
...”
“An appeal under the urgent-applications procedure shall lie to the Commissioner-General for Refugees and Stateless Persons against decisions of the Minister or his or her delegate pursuant to section 52 refusing aliens claiming refugee status permission to enter, remain or settle in the Kingdom.”
“Aliens against whom a measure has been taken depriving them of their liberty pursuant to sections 7, 25, 27, 29, second paragraph, 51/5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63/5, third paragraph, 67 and 74/6 may appeal against that measure by lodging a notice of appeal with the committals division of the criminal court with jurisdiction for the place where they reside in the Kingdom or the place where they are found.
...
They may renew the appeal referred to in the preceding paragraphs at monthly intervals.
...”
“The committals division shall deliver its decision within five working days from the date an appeal is lodged after hearing the submissions of the alien or his or her counsel and the opinion of State Counsel's Office.
... If the committals division fails to deliver its decision within the period fixed, the alien shall be released.
The committals division shall review the legality of the detention and deportation orders but shall have no power to review their reasonableness.
An appeal shall lie against orders of the committals division by the alien, State Counsel's Office and, in the circumstances set out in section 74, the Minister or his or her delegate.
The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file.
Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing.
The registrar shall notify counsel of the decision by registered letter.”
“If the committals division decides that the alien shall not remain in custody, he or she shall be released as soon as the decision has become final.
The Minister may order the alien to reside in a designated place either until the deportation order has been executed or until his or her appeal has been decided.”
26. In a judgment of 14 March 2001 the Court of Cassation reversed a decision of the Indictment Division of the Liege Court of Appeal ordering an alien's release. The Indictment Division had held that, contrary to Article 13 of the Convention, the authorities had deprived the alien of an effective remedy in law by interpreting the fact that appeals to the Conseil d'Etat had no suspensive effect as meaning that it was lawful for illegal immigrants to be forcibly expelled. The Court of Cassation held that, on the contrary, the issue whether an alien who had applied for refugee status had an effective remedy for the purposes of Article 13 had to be examined in the light of the procedure as a whole. After observing that appeals to the Commissioner-General for Refugees and Stateless Persons under the urgent procedure were of suspensive effect and that aliens were entitled, when lodging applications with the Conseil d'Etat for judicial review, to apply at the same time for a stay of execution under the ordinary or extremely urgent procedure, it concluded that those remedies taken as a whole satisfied the requirements of Article 13 of the Convention.
27. The relevant provisions of the Royal Decree of 5 December 1991 laying down the urgent procedure in the Conseil d'Etat read as follows:
“In cases certified to be extremely urgent, Article 7 and 11 to 14 shall not be applicable.
In such cases, the president may issue a summons ordering the applicants, the respondent, any intervening party and any persons with an interest in the outcome of the case to attend a hearing (which may be held at the president's home) at the time indicated, including on bank holidays and on a few days' or a few hours' notice.
The order shall be served on Crown Counsel or on a designated member of Crown Counsel's Office.
The notice shall, if applicable, indicate whether the administrative file has been lodged.
If the opposing party has not communicated the administrative file beforehand, it shall produce it to the president at the hearing and the president may suspend the hearing to allow the representative of Crown Counsel's Office, the applicants and any intervening party to inspect it.
The president may order immediate execution of the judgment.”
“Applications for provisional measures shall be made separately from applications for a stay of execution or for judicial review.
The application shall be signed by a party, a person with an interest in the outcome of the case or a lawyer satisfying the conditions laid down by section 19, second paragraph, of the consolidated Acts.”
“If an applicant for a stay of execution also seeks extremely urgent provisional measures, Article 25 shall apply to his or her application. Articles 29 to 31 shall not be applicable.
In cases certified to be extremely urgent, the president may issue a summons ordering the parties and any persons with an interest in the outcome of the case to attend a hearing (which may be held at the president's home) at the time indicated, including on bank holidays and on a few days' or a few hours' notice.
The order shall be served on Crown Counsel or on a designated member of Crown Counsel's Office.
The notice shall, if applicable, indicate whether the administrative file has been lodged.
The president may order immediate execution of the judgment.”
28. The Conseil d'Etat's practice direction on the “procedure to be followed by duty staff at weekends” includes the following passage concerning “the receipt of applications for stays under the extremely urgent procedure”:
“The caretaker shall contact the duty judge, the representative of Crown Counsel's Office and the registrar so that the degree of urgency can be determined and a hearing date agreed. In cases concerning 'aliens', the registrar shall, at the judge's request, contact the Aliens Office to ascertain the scheduled repatriation date and shall seek confirmation by fax. It is advisable in all cases concerning 'aliens' for the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons to be recorded as the opposing parties. It is also prudent in cases involving imminent repatriation to order the applicant's appearance in person.”
29. There are a number of examples in the case-law of the Conseil d'Etat of cases in which it ordered a stay of execution of a deportation order on the same day as the application for a stay under the extremely urgent procedure or on the following day, or, in any event, before the time-limit for leaving the territory expired. These are to be found in the following judgments: nos. 40.383 of 20 September 1992, 51.302 of 25 January 1995, 57.807 of 24 January 1996, 75.646 of 2 September 1998, 81.912 of 26 July 1999, 84.741 of 18 January 2000 and 85.025 of 1 February 2000.
The Conseil d'Etat has also ruled that it may entertain applications for judicial review of deportation orders (see, for instance, the following judgments: nos. 56.599 of 4 December 1995, 57.646 of 19 January 1996, 80.505 of 28 May 1999 and 85.828 of 3 March 2000).
30. In August 1999 there was a sharp increase in the number of asylum-seekers from Slovakia. While the average for the first seven months of 1999 had been 22 applications monthly, including 51 applications in July alone, no less than 359 applications were made between 1 and 24 August 1999. On that latter date, the Director-General of the Aliens Office wrote to the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons to inform them of his intention to deal with asylum applications from Slovakian nationals rapidly in order to send a clear signal to discourage other potential applicants.
31. A “Note providing general guidance on overall policy in immigration matters” approved by the Cabinet on 1 October 1999, contained, inter alia, the following passage:
“A plan for collective repatriation is currently under review, both to send a signal to the Slovakian authorities and to deport this large number of illegal immigrants whose presence can no longer be tolerated.”
32. The report on Slovakia of 15 June 1998 of the European Commission against Racism and Intolerance contains the following passage:
“In Slovakia as in several other countries of central and eastern Europe, Roma/Gypsies belong to the most disadvantaged sections of society. Apart from a few isolated cases, they live outside the public arena, cut off from decision-making centres and the main currents of political opinion. They are often the victims of skinheads' violence and are regularly subjected to ill-treatment and discrimination by the authorities.”
33. A further report produced by the applicants and drawn up after a joint mission to Slovakia in February 1999 of the Aliens Office and the Commissioner-General's Office for Refugees and Stateless Persons appears to confirm the existence of serious discrimination against Roma, who are treated as a lower class.
VIOLATED_ARTICLES: 13
5
P4
VIOLATED_PARAGRAPHS: 5-1
5-4
P4-4
NON_VIOLATED_ARTICLES: 13
3
5
NON_VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-90272
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VLAHOVIĆ v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1955 and lives in Niš, Serbia.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. On 11 May 2001 the Municipal Court in Niš (“Municipal Court”) ruled in favour of the applicant and ordered the respondent “socially-owned” company (see paragraph 46 below), “Vagonka” (“the debtor”), to pay him:
i. salary arrears in the amount of 98,001 Dinars (“RSD”, approximately 1,661 euros, “EUR”) plus statutory interest as of 27 January 2001;
ii. 267,620 RSD (approximately 4,537 EUR) in already accrued statutory interest, and
iii. 800 RSD (approximately 14 EUR) for his legal costs.
9. By 15 June 2001 this judgment became final.
10. On 22 June 2001 the applicant filed a request for the enforcement of the judgment, proposing that it be carried out through the auctioning of the debtor’s movable assets.
11. On 4 October 2001 the Municipal Court accepted the applicant’s request and issued an enforcement order (I.br. 1706/01).
12. This order subsequently became final.
13. The Municipal Court thereafter attempted several auctions but to no avail.
14. On 2 July 2002 the Municipal Court reduced the sum awarded to the applicant in the above judgment by 95,730 RSD (approximately 1,578 EUR), which amount the applicant owed the debtor based on a prior transaction within a separate set of enforcement proceedings.
15. On 28 November 2002 the applicant filed another request for the enforcement of the above judgment, this time proposing that it be carried out by means of a bank transfer and that the total sum awarded therein be reduced by 95,730 RSD.
16. On 13 December 2002 the Municipal Court accepted the applicant’s request and issued an enforcement order (I.br. 3974/02).
17. By 4 February 2003 this order became final.
18. On 25 February 2003 the Municipal Court provided the Central Bank (Narodna banka Srbije) with the enforcement order, as well as the debtor’s bank account details.
19. On 20 March 2003 the Municipal Court provided the Central Bank with additional specifications concerning the enforcement ordered.
20. On 6 October 2004 the applicant urged the Central Bank and the Ministry of Finance to ensure effective implementation of the Municipal Court’s enforcement order dated 13 December 2002 (I.br. 3974/02).
21. On 29 November 2005 the applicant requested the Municipal Court to provide him with a complete list of the debtor’s assets.
22. On 19 January 2006 the Privatisation Agency (Agencija za privatizaciju) published a public announcement inviting all of the debtor’s creditors to report their claims, noting, however, that the private creditors were not legally obliged to do so.
23. On 16 June 2006 the same agency accepted a privatisation programme for the debtor.
24. On 29 August 2006 the applicant wrote to the Central Bank. He stated that the debtor’s bank account had apparently not been blocked despite the fact that there was a binding court decision so ordering.
25. On the same date the applicant complained to the Privatisation Agency, referring to his application filed with the Court.
26. On 31 August 2006 the applicant received a letter form the Central Bank, informing him that on 10 August 2006 the above enforcement had been stayed at the initiative of the Privatisation Agency.
27. On 4 September 2006 the Privatisation Agency itself sent a letter to the applicant, explaining that the decision to privatise the debtor, by means of a public auction, had been adopted on 11 January 2006. It then, inter alia, referred to Article 31 of the Amendments and Additions to the Privatisation Act (see paragraph 45 below) and concluded that the enforcement proceedings at issue had to be stayed, ex lege, for a period of two years beginning on 11 January 2006.
28. On 12 February 2007 an unrelated final judgment, rendered in favour of a third party, was enforced against the debtor by means of a bank transfer.
29. On 21 February 2007 86.92% of the debtor’s socially-owned capital was privatised.
30. On 26 February 2007 the Privatisation Agency withdrew the instruction issued to the Central Bank.
31. On 2 March 2007 the Central Bank resumed the enforcement ordered by the Municipal Court.
32. On 29 May 2007 the President of the Supreme Court (Vrhovni sud Srbije) confirmed that judicial enforcement proceedings could not be stayed in respect of a company undergoing privatisation without restructuring. She also noted that, in any event, it was within the sole competence of the enforcement court to rule in this regard.
33. On 4 June 2007 the Deputy President of the High Commercial Court (Viši trgovinski sud) confirmed that, in the absence of restructuring, no stay of enforcement was possible.
34. On 4 July 2007 the Privatisation Agency confirmed that the debtor had not been restructured as part of its privatisation process.
35. On 4 October 2007 the Central Bank carried out the enforcement ordered by the Municipal Court.
36. On 12 December 2007 the applicant filed a new claim with the Municipal Court, seeking that the debtor be ordered to pay additional statutory interest in respect of the RSD 267,620 already awarded in his favour (see paragraph 8 above). These proceedings are still pending.
37. Article 4 § 1 provided that all enforcement proceedings were to be conducted urgently.
38. Under Article 59 only the court in charge of these proceedings had the right to stay them.
39. Articles 63-84 and 180-188 regulated enforcement by means of a bank transfer, as well as enforcement through the auctioning of the debtor’s movable assets.
40. The Enforcement Procedure Act 2004 (“the 2004 Act”) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act 2000 (“the 2000 Act”).
41. Article 304 of the 2004 Act, however, provides that all enforcement proceedings instituted prior to 23 February 2005 are to be concluded in accordance with the 2000 Act.
42. Articles 5 and 6 provide, inter alia, that judicial review proceedings may only be brought against an administrative decision issued by a competent State body.
43. Under Articles 47, 48 and 57, inter alia, the Serbian Central Bank shall comply with a final judicial execution order providing for enforcement by means of a bank transfer and shall, in so doing, instruct the “debtor’s bank” to transfer the amount in question.
44. Articles 19-20đ set out the details as regards the restructuring of companies about to be privatised. This restructuring, however, is optional and a company may be sold without having been restructured if the Privatisation Agency so decides.
45. Article 31 provides that a company whose restructuring commenced prior to 7 June 2005, as part of an ongoing privatisation, cannot be “subjected to an enforcement procedure” within one year of that date. If the decision to restructure a company, however, was not adopted prior to 7 June 2005, the relevant time limit shall be two years as of the subsequent adoption of a decision to this effect. Any ongoing enforcement proceedings shall be stayed while new enforcement proceedings shall not be instituted until the expiry of the above time-limits.
46. The relevant provisions of this legislation are set out in the R. Kačapor and Others v. Serbia judgment (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 68-76, 15 January 2008).
47. Other relevant provisions are set out in the Cvetković v. Serbia judgment (no. 17271/04, §§ 28-34, 10 June 2008, not yet final).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-75224
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRAJNC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1965 and lives in Velenje.
6. On 2 April 1995 the applicant had a traffic accident. While he was driving a motorcycle, a dog jumped on the applicant and made him fall. The dog’s owner had taken out insurance with the insurance company ZT.
7. On 25 August 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 231,201 tolars (approximately 965 euros) for the injuries sustained.
Between 23 March 1999 and 4 October 1999 the applicant made five requests that a date be set for a hearing.
On 13 March 2000 and 24 March 2000 he lodged preliminary written submissions and/or adduced evidence.
Of the five hearings held between 8 March 2000 and 28 June 2000 none was adjourned at the request of the applicant.
At the last hearing the court decided to issue a written judgment. The judgment, upholding the applicant’s claim, was served on the applicant on 14 December 2000.
8. On 27 December 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju) against the decision on costs and expenses. ZT cross-appealed.
On 6 February 2002 the court allowed both appeals and remanded the case back to the first-instance court for re-examination.
The decision judgment was served on the applicant on 7 March 2002.
9. On 12 March 2002 the applicants lodged preliminary written observations with the first-instance court.
On the 29 May 2002 the court held a hearing and rejected the applicant’s claim for costs and expenses.
The decision was served on the applicant on 4 June 2002.
10. On 5 June 2002 the applicant appealed to the Celje Higher Court.
On 8 October 2003 the court allowed the appeal and increased the amount of damages awarded.
The judgment was served on the applicant on 21 October 2003.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1