ITEMID: 001-91158
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: POST v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: The applicant, Ms Angelique Post, is a Dutch national who was born in 1983 and lives in Vlijmen. She was represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht.
On an unspecified date in March 2007 the applicant was arrested, held in custody and subsequently in pre-trial detention (voorlopige hechtenis) on suspicion of murder. She was subsequently summoned to appear before the ‘sHertogenbosch Regional Court (rechtbank) in order to stand trial. The order for her pre-trial detention was duly prolonged, for the last time on 7 May 2007 when the ‘s-Hertogenbosch Regional Court sitting in chambers (raadkamer) extended by 60 days the order for the applicant’s further detention on remand (gevangenhouding).
The applicant’s trial started on 4 July 2007 before the ‘s-Hertogenbosch Regional Court, which decided to adjourn the examination in court until 20 September 2007. On 25 September 2007, the Regional Court fully recommenced its examination as its composition had changed in the meantime. It further decided to adjourn for an unspecified period its examination in court of the applicant’s case.
By letter of 24 October 2007, the Acting President of the ‘sHertogenbosch Regional Court informed the applicant that, due to a misunderstanding, one member of the threejudge section of the Regional Court having considered the applicant’s case on 25 September 2007 was a judge in training, assigned temporarily to the ‘s-Hertogenbosch Regional Court and who apparently had not yet been officially appointed and sworn in as a deputy judge (rechter-plaatsvervanger) before taking up her position in ‘s-Hertogenbosch. The applicant was further informed that a fresh hearing would be scheduled as soon as practically possible.
On 25 October 2007, the applicant’s lawyer filed a request to lift the applicant’s pre-trial detention with immediate effect.
On 30 October 2007, the ‘s-Hertogenbosch Regional Court sitting in chambers lifted the order for the applicant’s pre-trial detention and ordered her immediate release. It considered that, although it lacked competence to pronounce the nullity of the trial proceedings conducted on 25 September 2007 and could only determine the validity of the legal basis for the applicant’s ongoing pre-trial detention, it was rather obvious that the competent forum would pronounce that nullity. In this light, it concluded that article 66 § 2 of the Code of Criminal Procedure found no application and that the delay referred to in article 282 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) had expired. As this thus risked giving rise to uncertainty about the applicant’s legal position, the Regional Court – for the sake of clarity – lifted the order for the applicant’s pre-trial detention and ordered her immediate release. On 31 October 2007, the public prosecutor filed an appeal against the decision to lift the pre-trial order.
On 6 November 2007, the ‘s-Hertogenbosch Court of Appeal (gerechtshof) accepted the prosecutor’s appeal, quashed the decision of 30 October 2007 and rejected a request filed during the hearing before the Court of Appeal to lift the applicant’s pre-trial detention. It rejected the applicant’s argument that, pursuant to article 282 of the CCP, her pre-trial detention should be regarded as having become unlawful on 4 October 2007 as the court hearing of 25 September 2007 was ipso iure null and void. The Court of Appeal considered that such ipso iure nullity would only arise if that hearing had been held before a non-judicial body, which was not the situation in the case at hand. The hearing of 25 September 2007 was one in a series of hearings before and decisions taken by the ‘s-Hertogenbosch Regional Court in the applicant’s case under the provisions of the CCP. This was not altered by the fact that the hearing of 25 September 2007 was flawed as one member of the threejudge section of the Regional Court did not have the status of judge. As the hearing of 25 September 2007 was not ipso iure null and void, it could not be concluded that the legal basis for the applicant’s pre-trial detention had become extinct three months after 4 July 2007. This legal basis remained article 66 § 2 of the CCP. The Court of Appeal acknowledged that the composition of the three-judge section at issue was very seriously flawed and that this raised the question whether this flaw had a bearing on the legal basis for the applicant’s pre-trial detention. After an examination of the statutory system concerning the rules on pre-trial detention, it concluded that there remained a legal basis for the applicant’s pre-trial detention, namely article 282 § 2 of the CCP, given that three months had not yet elapsed since 25 September 2007. It further decided, after having noted that it was intended to hold a fresh trial hearing on 7 November 2007 before the Regional Court, that the applicant’s interest in being released from pre-trial detention was outweighed by general interest considerations. No further appeal lay against this decision, of which the applicant was notified on 6 November 2007.
A pre-trial detention order issued by the Regional Court remains in force until 60 days after the final judgment (einduitspraak) at that instance has been given (article 66 § 2 of the CCP”). For the purposes of limiting the application and duration of pre-trial detention, article 282 of the CCP regulates the duration of suspensions of trial proceedings. This provision reads in its relevant part:
“1. If the defendant is being held in pre-trial detention, the following paragraphs shall apply [in relation to suspensions of trial proceedings].
2. If the Regional Court suspends the examination in court (onderzoek op de terechtzitting) for a specific period, the period of suspension shall as a rule not exceed one month. However, if there are compelling grounds, it may set a longer period but in no case longer than three months.
3. If the Regional Court suspends examination in court sine die, it shall determine by analogous application of the second paragraph a maximum period within which the examination in court must be resumed....”
An overview with further details of the relevant domestic law and practice in respect of pre-trial detention can be found in the Court’s decision on admissibility in the case of Close v. the Netherlands (no. 9298/02, 25 May 2004).


ITEMID: 001-58061
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF DE SALVADOR TORRES v. SPAIN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-3-a
JUDGES: C. Russo;R. Pekkanen
TEXT: 6. The applicant, Mr de Salvador Torres, was born in 1928 and is resident in Barcelona.
7. In June 1966, in his capacity as head administrator of a public hospital in Barcelona (Hospital Clínico y Provincial), the applicant made an agreement with a bank to the effect that interest on deposits would be paid at a higher rate than that applicable by law. The applicant arranged for payment into his personal account of the excess amounts corresponding to the difference between the legal rate of interest and that of the additional interest (extratipos) paid by the bank on the sums deposited. Between 1966 and 1983 a total sum of 147,614,565 pesetas were thus transferred to the applicant.
8. In 1983 criminal proceedings were brought against the applicant. By a decision of 16 March 1984 (auto de procesamiento), Barcelona investigating judge no. 2 found that the facts established by him disclosed the offence of embezzlement of public funds (malversación de caudales públicos) under Article 394 para. 4 of the Criminal Code (see paragraph 15 below), carried out not by a civil servant stricto sensu but by a person entrusted with funds belonging to a public institution (Article 399 of the Criminal Code - see paragraph 16 below). The applicant was subsequently committed for trial in the Barcelona Audiencia Provincial. The public prosecutor and the hospital, acting as a private prosecutor, lodged submissions which essentially endorsed the findings of the investigating judge and requested, inter alia, that the applicant be sentenced to fifteen years' imprisonment. State Counsel (Abogado del Estado), appearing also as a private prosecutor on behalf of the State finances, submitted that the facts of the case constituted the offence of corruption of a civil servant.
9. In a judgment of 12 September 1988, the Audiencia Provincial, held that, although the applicant fell into the category provided for in Article 399, the sums embezzled by him were not "public funds" and, accordingly, Article 394 para. 4 was not applicable. It further held that, owing to his particular personal status in the hospital, the applicant could not be considered a civil servant stricto sensu. It therefore dismissed the charges of corruption. The applicant was nonetheless convicted of the offence of simple embezzlement (apropiación indebida) under Article 535 (see paragraph 17 below) and sentenced to eighteen months' imprisonment pursuant to Articles 528 and 529 para. 7 of the Criminal Code (see paragraphs 18 and 19 below). The Audiencia Provincial did not find any aggravating circumstance of general application (see paragraph 21 below).
10. The public prosecutor and the hospital appealed on points of law. They described the amounts in question as public funds and again requested the applicant's conviction for the offence of embezzlement of public funds under Articles 394 para. 4 and 399 of the Criminal Code. In his submissions, the public prosecutor stressed the fact that the Audiencia Provincial had clearly acknowledged that the applicant was a person entrusted with funds belonging to a public institution for the purposes of Article 399.
11. The applicant did not appeal, thereby accepting the facts as established by the Audiencia Provincial, their legal classification and the sentence.
12. In two subsequent decisions of 21 March 1990, the Supreme Court (Tribunal Supremo) found that, although the sums embezzled could be considered public, the offence under Article 394 para. 4 did not apply since the hospital was not legally entitled to those sums. Contrary to the Audiencia Provincial, the Supreme Court further held that:
"(...)
In any event, it is true that, even if Article 394 of the Criminal Code (embezzlement of public funds) cannot be applied, the fact remains that the accused Mr de Salvador is a civil servant and that he took advantage of his position in order to commit the offence of which he was found guilty. Therefore, ... the aggravating circumstance in Article 10 para. 10 must be applied. To put it in a graphic manner: if the offence of embezzlement of public funds cannot apply due to the lack of the objective element, the aggravating circumstance must apply given the offender's legal position."
The Supreme Court therefore quashed the judgment being appealed and convicted the applicant of the offence of simple embezzlement with the aggravating circumstance that he had taken advantage of the public nature of his position in performing the duties entrusted to him (Article 10 para. 10 of the Criminal Code - see paragraph 21 below). In doing so, the Supreme Court considered that a request to apply this aggravating circumstance could be inferred from the public prosecutor's submissions (see paragraph 10 above). In the exercise of its powers (see paragraph 22 below), the Supreme Court sentenced the applicant to five years' imprisonment, the maximum term of imprisonment for the offence of embezzlement under the rules for the determination of sentence set forth in Article 61 para. 2 of the Criminal Code (see paragraph 20 below).
13. Mr de Salvador Torres filed an amparo appeal in the Constitutional Court (Tribunal Constitucional). He asserted that he had not been informed of all the components of the charge against him and that, accordingly, his right to a fair trial had been violated (Article 24 of the Constitution - see paragraph 14 below). By a decision (auto) dated 20 July 1992, the appeal was declared inadmissible on the ground that it did not disclose any relevant issues of constitutional law. The Constitutional Court found that the applicant was well aware that the charges against him presupposed not only that the offender's position was equivalent to that of a civil servant, but also that he had taken advantage of that position in the commission of the offence. He had therefore had the possibility to address that issue throughout the proceedings and his defence rights had not been forfeited.
14. According to Article 24 of the Constitution:
"1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests and in no circumstances may there be any denial of defence rights. 2. Likewise, everyone has the right ... to be informed of the charge against him, to have a ... trial ... attended by all the safeguards, to adduce the evidence relevant to his defence,
(...)"
15. By Article 394 of the Criminal Code:
"Any civil servant who embezzles or suffers others to embezzle public funds or other property entrusted to his care by virtue of his office shall be liable to: ... 4. a term of imprisonment ranging from twelve years and one day to twenty years (reclusión menor) if the amount embezzled exceeds 2,500,000 pesetas. ... In all cases, the offender shall also be permanently disqualified from public office."
16. By Article 399, the foregoing provision also applies to:
"(...)
those entrusted, in any capacity whatsoever, with funds ... belonging to provincial or municipal authorities or to educational establishments or charitable organisations, and to administrators or depositories of funds ... deposited by a public authority, even if they belong to individuals".
According to the case-law, the offender must not only be a civil servant or a person entrusted with sums belonging to a public institution, he or she must also have taken advantage of that position.
17. By virtue of Article 535:
"Anyone who, to the detriment of others, appropriates or embezzles money, assets or any other personal property, entrusted to his care as depository, agent or administrator, or in any other capacity carrying the obligation to deliver or return the property, or denies having received such property shall be liable to the penalties laid down in Article 528
(...)"
18. Article 528, in so far as relevant, provides as follows:
"(...)
A person convicted of this offence shall be liable to a term of imprisonment ranging from one month and one day to six months (arresto mayor) if the sum involved exceeds 30,000 pesetas. If there are found to be two or more of the aggravating circumstances provided for in Article 529 below or one especially aggravating circumstance, the person convicted shall be sentenced to a term of imprisonment ranging from six months and one day to six years (prisión menor) ... Where only one of the aggravating circumstances referred to in Article 529 is found to be established, the term of imprisonment shall be in the range of the maximum sentence available (grado máximo) [from four months and one day to six months]."
19. By Article 529:
"The following circumstances shall be deemed to be aggravating circumstances for the purposes of the preceding Article:
(...)
7. Where the offence is particularly serious in terms of the sum embezzled."
20. In order to determine the sentence, where a particular offence is punished with a term of imprisonment, this can be divided in three identical periods (grados): minimum, medium and maximum. If a court finds that no mitigating circumstances and only one aggravating circumstance can be established, it shall impose a medium or maximum sentence. Where more than one aggravating circumstances are established, the maximum sentence shall be imposed (Article 61).
21. Aggravating circumstances can be specific to a particular offence (see, for example, paragraph 19 above) or of a general nature. Article 10 of the Criminal Code describes the aggravating circumstances which can be applied to any offence:
"The following are aggravating circumstances:
(...)
10. the fact that the offender has taken advantage of the public nature of his or her position."
22. Where the Supreme Court finds that an appealed decision is in breach of the law, it will quash it and set it aside and render a new decision on the merits. In doing so, the only restriction on the court is not to pass a heavier sentence than the one which would correspond to the prosecutor's request (Article 902 of the Code of Criminal Procedure).
23. As with any court, the Supreme Court has the power to depart from the legal classification given by the prosecution provided that: (a) the criminal intent in the offence found applicable is essentially identical to that in the offence as charged ("delitos homogéneos" - for instance homicide and parricide); (b) no different facts are taken into consideration; (c) the new classification leads to the imposition of a sentence that is less severe than that requested by the prosecution. These powers have been considered constitutional by the Constitutional Court in, among others, its judgments of 23 November 1983 (105/83), 17 July 1986 (104/86) and 29 October 1986 (134/86). The new legal classification may involve the finding of aggravating circumstances that are implicit in the original characterisation (Supreme Court, Criminal Chamber, judgment of 13 June 1984, Repertorio de Jurisprudencia Aranzadi no. 3553, p. 2708).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-a


ITEMID: 001-5689
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BUTOVAC v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a national of Yugoslavia, born in 1969. Before the Court he is represented by Mr Bertil Dahlström, a lawyer practising in Sundsvall, Sweden.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 May 1992 the applicant and his wife, Z.B., arrived in Sweden with their son, born in October 1991. They applied for asylum. In May 1993 their daughter was born. On 17 August 1993 the National Immigration Board (Statens invandrarverk) rejected the application. The decision was upheld by the Aliens Appeals Board (Utlänningsnämnden) on 6 October 1994. However, due to difficulties in expelling people to Yugoslavia, the family remained in Sweden.
By a judgment of 21 February 1997 the District Court (tingsrätten) of Sundsvall sentenced the applicant to three months in prison for, inter alia, threatening behaviour (olaga hot) and violation of a visiting ban (överträdelse av besöksförbud). The court ordered his expulsion from Sweden and prohibited him from returning before 21 February 2002. The court noted that, following several reports by Z.B. that she had been threatened by the applicant, the public prosecutor, by a decision of 21 January 1997, had banned the applicant from visiting Z.B. for a period of 5 months. She had also been given a security alarm by the police. The court found that the applicant, on 24 and 31 January 1997, had violated the visiting ban and had threatened to “cut [Z.B.’s] throat”.
The District Court took into account that, on five occasions between 1993 and 1996, the applicant had been fined for various crimes, including threatening behaviour in 1994 and drunken driving (rattfylleri) and shoplifting (snatteri) in 1996. In fixing his sentence at 3 months’ imprisonment, the court also had regard to the detriment suffered by the applicant as a result of his expulsion.
The applicant and Z.B. were divorced on 19 March 1997. By an interim decision, Z.B. was awarded custody of the children.
On 27 March 1997 the Court of Appeal (hovrätten) for Southern Norrland upheld the District Court’s judgment of 21 February 1997.
On 7 April 1997 the District Court convicted the applicant of theft (stöld) and ordered that the previously imposed sanction should also comprise this crime.
On 25 April 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal against the Court of Appeal’s judgment of 27 March 1997.
On 15 May 1997 the applicant was sentenced by the District Court to 1 month’s imprisonment for driving without a driver’s licence (olovlig körning) and for a new violation of the visiting ban. Finally, on 5 May 1998, the District Court convicted the applicant of gross drunken driving (grovt rattfylleri) and for driving without a driver’s licence, and sentenced him once again to 1 month’s imprisonment.
On 2 June 1997 the Aliens Appeals Board granted Z.B. and the children residence permits in Sweden. The Board took into account that they had remained in Sweden due to the ban on expelling people to Yugoslavia. As a result, they had lived in Sweden for 5 years and the children had developed connections to Sweden. Thus, there were humanitarian reasons not to expel them from Sweden.
On 2 July 1997 the Aliens Appeals Board, referring to the expulsion order against the applicant, rejected his application for a residence permit.
Later the applicant requested the Government to annul the expulsion order. By decision of 5 March 1998 the Government rejected the request.
On 8 May 1998 the District Court of Stockholm awarded Z.B. permanent custody of the children and granted the applicant a right of access to them.
On 4 June 1998 the Supreme Court rejected a request from the applicant for a reopening of the criminal proceedings against him.
On 15 July 1999 the Government rejected a new request from the applicant for annulment of the expulsion order.


ITEMID: 001-69911
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PODBIELSKI AND PPU POLPURE v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1949 and lives in Witoszόw Dolny, Poland.
10. The proceedings described below have already been examined by the Court from the point of view of the “reasonable time” requirement. In its judgment of 30 October 1998 the Court unanimously held that the Polish authorities had been in breach of Article 6 § 1 (Reports 1998-VIII, pp. 3387-3400).
11. On 25 May 1992 the applicant, who was at that time the owner and the president of the management board of the company “Polpure” sued the Świdnica Municipality (Miasto Gmina) in the Wałbrzych Regional Court (Sąd Wojewódzki), seeking payment for construction works which it had carried out for the defendant. He also sought damages for the defendant’s delay in payment and penalties resulting from the breach of contract.
12. On 27 May 1992 the company was exempted from court fees due for lodging the claim.
13. On 7 September 1992 the Wałbrzych Regional Court gave judgment. It declared certain clauses of the contract null and void, as being in breach of a number of substantive civil law provisions.
14. Following the applicant’s appeal, the judgment was later quashed and the case remitted.
15. On 1 February 1993 the Wałbrzych Regional Court allowed the applicant’s claim for payment but declared null and void a clause of the contract that imposed penalties for the breach of contract. The parties’ further appeals were dismissed by the Wrocław Court of Appeal (Sąd Apelacyjny) on 27 April 1993.
16. On 25 June 1993 the Ombudsman filed with the Supreme Court (Sąd Najwyższy) an extraordinary appeal on behalf of the company, submitting that the Court of Appeal’s judgment had been in flagrant violation of substantive civil law and had unduly restricted the parties’ freedom of contract. That appeal was rejected on 7 October 1993.
17. On 28 January 1994 the Supreme Court, on an application made by the applicant, reopened the extraordinary appeal proceedings. It amended its judgment of 7 October 1993, set aside the judgments of 1 February and 27 April 1993 and remitted the case to the court of first instance. It ordered that the claims, save for the already-awarded claim for payment, be reconsidered. The Supreme Court held that the previous judgments were in breach of substantive civil law. It gave guidelines as to how to proceed with the claims.
18. On 5 May 1994 the applicant modified the claims and asked for a total award of 18,321,586,800 old Polish zlotys (PLZ). He also made an application to the Regional Court, asking for an exemption of the company from all court fees involved in the litigation.
19. On 6 June 1994 the court partly granted the application and exempted the company only from a court fee due for lodging the modified claim (which would normally have amounted to PLZ 932,080,000), except for the first PLZ 66,000,000.
20. The court observed that while it was true that the applicant’s company had encountered significant difficulties in recovering payments from third parties, had lost its credit solvency and was charged with debts, it had not yet been declared insolvent and was, accordingly, able to continue its commercial activity. In view of that, the court considered that exempting it from all future court fees would not be justified.
21. On 20 July 1994, on an appeal filed by the applicant, the Wrocław Court of Appeal quashed that decision and held that the exemption from the court fee due for lodging the claim, granted on 27 May 1992, was still in force and applied to the modified claim.
22. In a judgment of 20 February 1995 the Wałbrzych Regional Court ordered the defendant to pay pecuniary penalties to the applicant, but reduced their amount to PLZ 1,844,300,000 because it considered that the penalties originally fixed in the contract were excessive. It dismissed the claim for damages arising from the defendant’s delay in payment.
23. On 30 March 1995 the applicant appealed against the judgment of 20 February 1995, arguing that the court had not made certain findings of fact which were relevant to the outcome of the case and that it had committed a number of procedural errors. He also asked for an exemption from court fees due for lodging an appeal on behalf of the company. That fee amounted to 84,593.54 new Polish zlotys (PLN). The Regional Court partly exempted the company, ordering that it should pay PLN 40,000.
24. On 25 May 1995 the Wrocław Court of Appeal, on the applicant’s appeal lodged on behalf of the company, quashed that decision and exempted the company from the entire fee due for lodging the appeal. The court, finding that all the company’s assets had been attached in enforcement proceedings against it, that its bank accounts had been frozen and that its debts exceeded PLN 1,605,184, held that it was impossible for it to pay the fee in question.
25. On 31 August 1995 the Wrocław Court of Appeal set aside the judgment of 20 February 1995 in so far as it had rejected the applicant’s claim for damages for the defendant’s delay in payment. It ordered that that claim be reconsidered since the trial court had failed to comply with the Supreme Court’s legal opinion and guidelines on that matter. It also criticised the manner in which the trial court had taken expert evidence.
26. On 23 October 1996 the Wałbrzych Regional Court dismissed the claim for damages.
27. On 29 November 1996 the applicant filed, through the Wałbrzych Regional Court, an appeal to the Wrocław Court of Appeal. He submitted, among other things, that the Regional Court had for the second time failed to comply with the guidelines given by the Supreme Court and the Court of Appeal in respect of the claim for damages for the defendant municipality’s delay in payment and that it had disregarded the instructions given by the Court of Appeal in the judgment of 31 August 1995. The value of the claim asserted in the appeal proceedings was PLN 3,511,334.03. The applicant asked for an exemption from court fees due for lodging an appeal. The relevant part of his application read:
“The plaintiff’s application for an exemption from court fees is based on the fact – a fact already ascertained by the court – that its financial situation has not improved but has become more difficult. The entire sum awarded by the previous judgment was, without any basis whatsoever, attached by the Bailiff of the Świdnica District Court. The defendant municipality, for its part, unjustifiably deducted its debts... from the sums awarded. The adjudicated claim was not therefore satisfied and the Bailiff in addition deducted from that sum PLN 73,014.28 by way of [costs of enforcement proceedings]. In consequence, the plaintiff sustained further loss. Moreover, the plaintiff’s debts have been climbing rapidly due to interest on arrears.”
28. On 3 January 1997 the Wałbrzych Regional Court exempted the applicant’s company from all court fees save for the first PLN 20,000 and dismissed the remainder of the application. The relevant part of that decision read:
“... the applicant has declared that it is still conducting its business activity, although it has limited it considerably. It emerges from entries made in the company’s cash book from January to October 1996 that since June 1996 cash holdings and disbursements exceeded PLN 20,000 and, in October, they reached PLN 44,000.
In the circumstances, exempting the applicant from the entire fee would be unjustified and that court exempts it only from fees exceeding PLN 20,000.”
29. The applicant appealed against that decision on 15 January 1997. The appeal read, in so far as relevant:
“... the Regional Court made erroneous findings in respect of the plaintiff’s financial situation:
1. As the plaintiff already stated, its situation, [assessed as bad by the Court of Appeal already on 25 May 1995] had not improved but had become worse. [the applicant further repeated the arguments adduced in the above-cited application];
2. The plaintiff has already produced abundant documentary evidence [including the 1995 balance sheet, cash books, the relevant bank report and documents setting out financial analyses of the company’s standing] confirming the previously-described financial situation, a situation with which the Regional Court has become well acquainted throughout that lengthy trial. That situation is as follows: in the year 1995 the company sustained losses; in the year 1996 it sustained losses in each month; the income did not cover debts (the outstanding debt is PLN 4,945,74); all assets were attached (see the enclosed list of court files); the bank account is practically empty (see the bank’s report); ... the outstanding debt of PLN 4,945.74 was eventually covered by the partner in order to avoid the institution of winding-up proceedings. ...;
3. There is no dispute that the defendant ruined the plaintiff company ... which now is able to carry out only casual construction works;
4. The opinion of the Court of Appeal expressed in its decision of 25 May 1995 [as to the bad financial situation of the applicant’s company] is therefore still valid
...”
30. On 13 February 1997 the Wrocław Court of Appeal dismissed the appeal, considering that the applicant’s company had sufficient means to pay the court fees. The court stressed that, pursuant to Article 113 § 2 of the Code of Civil Procedure, grounds for exempting a legal person from court fees were stricter; the court “could” but did not “have to” exempt it from such fees even if it proved that it did not have means to pay them. Furthermore, the Court of Appeal observed that since the applicant’s company still continued its business activity and derived a systematic income from it (which, recently, had been in excess of the PLN 20,000 needed for the required court fees), the Regional Court had correctly concluded that the applicant could pay that sum. A prospective litigant, the court added, should take into account the need to secure the court fees for the litigation and put aside part of his or its income for that purpose.
31. On 9 March 1997 the applicant made another application for an exemption from court fees, arguing that in the course of the prolonged litigation his company’s financial situation had deteriorated very significantly. He stressed that three days earlier the Bailiff had frozen the last two of the company’s bank accounts and attached PLN 2,214.15 and PLN 1,294.83 respectively (those sums had been the applicant’s salaries). Furthermore, the Świdnica Tax Office (Urząd Skarbowy) had ordered the company to pay immediately PLN 28,656.90 in tax arrears, together with default interest. In the circumstances, the company did not have any means whatsoever to pay the court fees. The applicant produced the relevant documentary evidence in support of his application. Those documents showed that the company had incurred a loss of PLN 23,711.04 in the year 1996, a loss of PLN 425,49 in January 1997 and a loss of PLN 4,954.79 in February 1997.
32. On 3 April 1997 the applicant’s lawyer filed a pleading with the Regional Court and asked it to hear evidence from the applicant in order to establish the current financial standing of the company.
33. On 14 April 1997 the court exempted the company from court fees exceeding PLN 10,000. It observed that in December 1996 the applicant’s company had an income of PLN 20,000 and that it could therefore pay the court fees previously imposed on it. In the court’s opinion, the documents produced by the applicant showed that since December 1996 to March 1997 the company’s management could have put aside money for securing court fees. However, having regard to the new facts supplied by the applicant on 9 March 1997, the court considered that the original fee should be reduced.
34. The applicant appealed on 8 May 1997. He stated, among other things, that he had been a “well-known bankrupt” and that he had no means whatsoever to pay court fees and, by reason of the fact that the company had lost its credit solvency, he could not even obtain a loan for the purpose of securing court fees. Yet as he had obtained a modest financial support, i.e. PLN 500 from a third person, he was prepared to pay that sum to the court. He further criticised the court for having considered only cash reports, which had not reflected the real state of the company’s business, and for having ignored the fact that under the applicable laws his company had a legal duty to disburse all cash in hand for tax arrears. He also stressed that the court had completely overlooked the losses the company had incurred.
35. On 9 June 1997 the Wrocław Court of Appeal dismissed the appeal. It considered that despite the losses sustained, the company could have put aside money for the court fees in question. In the court’s view, the company’s cash holdings should, in the first place, have been used for the court fees. The court also observed that the company should have regarded payment of those fees as its priority. Lastly, the court noted that the proceedings relating to the exemption from court fees had lasted for such a long time that the plaintiff could have secured money for the fees.
36. On 16 July 1997 the applicant made yet another application for an exemption from the court fees for lodging the appeal, save for the first PLN 500. He asked the Regional Court to obtain expert evidence and to hear evidence from himself as the president of the management board in order to establish the financial standing of his company. He submitted documents showing that he had in the meantime applied to two banks for loans to secure the court fees but that his applications had been rejected because of the very bad financial situation of the company. On 12 August 1997 the applicant filed a pleading and produced further documentary evidence. It emerged from the relevant documents that from 1 January to 30 June 1997 the applicant’s company had incurred a loss of PLN 3.090,71.
37. On 17 July 1997 the applicant paid PLN 500 to the court.
38. On 1 September 1997 the Wałbrzych Regional Court refused to grant the plaintiff any further exemption from court fees. The court reiterated the grounds already cited in its previous decisions. It rejected the application for evidence to be obtained from the applicant and the expert proposed by him.
39. The applicant appealed against that decision, but on 16 October 1997 the Wrocław Court of Appeal rejected his appeal.
40. On 15 December 1997 the applicant asked the Regional Court to allow him to pay the fee in instalments but his application was refused.
41. On 17 December 1997, the Wałbrzych Regional Court refused to proceed with the appeal against the judgment of 23 October 1996 and rejected it for non-compliance with the court’s decision ordering the company to pay the court fees for lodging the appeal.
42. From 29 January to 30 March 1998 both the Regional Court and the Court of Appeal considered the applicant’s subsequent, repeated and eventually unsuccessful applications for an exemption from court fees.
43. On 29 May 1998 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision rejecting his appeal of 29 November 1996 on formal grounds.
44. The applicant lodged with the Supreme Court a cassation appeal against that decision on 30 June 1998. The company was ordered to pay a court fee of PLN 10,000 for proceeding with the cassation appeal. That sum was paid on 16 November 1998. The applicant first submitted that the company had never paid a court fee to proceed with the cassation appeal since it could not afford it. Subsequently, he stated that that amount was paid by his friends on his behalf.
45. The cassation appeal was rejected on 10 June 1999.
46. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz (no. 1) v. Poland (appl. no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-39).
47. The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read:
“A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22040
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: VERDENS GANG and AASE v. NORWAY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, Verdens Gang, is a nation wide daily newspaper. The second applicant, Mrs Kari Aarstad Aase, born in 1960, is a journalist employed by the newspaper. The applicants are represented by Mr Anders C. Stray Ryssdal and Mr Pål Lorentzen, lawyers practising in Oslo and Bergen respectively.
The facts of the case, as described mainly in the national judgments, may be summarised as follows.
Since 1985 Dr Dillerud has run Fornebuklinikken A/S, a clinic of cosmetic surgery (hereinafter referred to as “the Clinic”) in Bærum (near Oslo), a limited liability company providing mostly liposuction and breast surgery services. For a long while and including the relevant period, Dr Dillerud was the Clinic’s only permanent doctor. From the beginning he was the Clinic’s daily manager and the chairperson of the company’s governing board. Dr Dillerud and his wife each owned 50% of the shares until 1993, when his brother acquired 33% of the shares. Thereafter Dr Dillerud owned 34% and his wife 33% of the shares.
Ms J. (born in April 1967) called the Clinic to fix an appointment indicating that the services she desired related to problems with fat and her bust. On 23 April 1992 Ms J. visited the Clinic for a consultation with Dr Dillerud. She was interested in his assistance as she wished to become a model. She subsequently made an appointment for liposuction to be performed on her thighs and hips. Before she could be attended to by Dr Dillerud, Ms J. was requested to fill in a medical questionnaire to certify her known medical status. She marked various rubrics indicating that, except for bronchitis and allergy, she had not previously suffered from any illness. She omitted to mention other diseases and positively stated that there were no present or previous illnesses to be noted. At the time she had made a number of suicide attempts, was being treated for general psychiatric problems and eating disorders and had from the age of 16 been unable to study or work. She indicated that she had regularly used contraceptive pills but no other medicines, thereby actively concealing the fact that she was using Fontex (a drug specifically aimed at persons suffering from bulimia), anti-depressive drugs and sleeping pills. She gave an affirmative answer to the question whether she had previously been operated on, stating that she had undergone liposuction in 1990, but concealed the fact that she had also undergone two other operations of a character which indicated eating disorders. The declaration was dated but not signed. At the time Ms J. was being treated for psychiatric problems, including bulimia, and for other complaints by two doctors and one psychologist, but she did not inform Dr Dillerud about this or the fact that she had a long history of suicide attempts.
On 30 April 1990 Ms J. again saw Dr Dillerud and got further information from him about the operation. She told her doctors and friends about her consultations with Dr Dillerud and the planned operation; they advised her against it. None of these doctors however took any further steps to stop the operation. The doctors included Chief Dr Olav Trygstad of the paediatric department of the National Hospital (Rikshospitalet), the country’s leading expert on eating disorders. On 12 May 1992 Ms J. called the Clinic and cancelled the operation. At the same time she contacted Verdens Gang enquiring as to whether the newspaper had anything on Dr Dillerud; she said she was angry with him because he had failed to understand that she suffered from bulimia. The applicant journalist listened to Ms J.’s story and proposed to prepare an article, to which the latter agreed provided that the article was not published before she had got back the money which she had paid to the Clinic in anticipation of the operation. On 25 May 1992 the journalist interviewed Dr Trygstad about Ms J.’s case but without disclosing the identity of Dr Dillerud.
On 2 June 1992, the second applicant telephoned Dr Dillerud and informed him about the paper’s wish to publish an article on Ms J.’s consultation at the Clinic. Dr Dillerud pointed out that as long as Ms J. had not released him from his duty of confidentiality, he considered himself barred from commenting on the actual consultation but he commented in general terms and denied that he had been aware that the patient had bulimia. It was then agreed that, subject to Ms J. releasing Dr. Dillerud from his duty of confidentiality, he would be able to comment more specifically. Subsequently, Ms J. agreed and signed a declaration to that effect. On 4 June 1992 (Thursday before Pentecost) Dr Dillerud received the declaration and tried to contact the second applicant, but in vain, as the journalist had gone on holiday and the report had already been, or was being, printed.
On Friday, 5 June 1992 Verdens Gang published, as the issue’s main item, a report prepared by the second applicant containing criticism made by Ms J. against Dr Dillerud The second applicant had based her report on information provided by Ms J. and comments obtained from Chief Dr Trygstad of the National Hospital (Rikshospitalet) and Mr Harry Martin Svabø, Secretary General of the Norwegian Medical Association.
The front-page was primarily devoted to the story. It carried the title “BULIMIA VICTIM TO BE LIPOSUCTIONED” in large bold capital letters on five lines. To the right of the title was the photograph of Ms J. wearing trousers and a sleeveless shirt, standing with her back turned towards the camera. Under the heading there appeared in half bold prints:
“For 12 years she has fought anorexia and bulimia. Nonetheless, according to the 25-year-old, Dr Erik Dillerud in Bærum had no reservations about performing liposuction on her. Good friends and Chief Dr Olav Trygstad of the National Hospital managed to dissuade her from undergoing the operation, which was to cost NOK 13,800.”
On pages 22 and 23 of the paper there was one main article and two smaller articles and a large photograph, extending over large parts of both pages, of Ms J.’s head as she covered her face with her hands. On the upper right part of the photograph there appeared the following quotation in white bold letters:
“He also offered to lift my eyebrows, to give my nose a more classical finishing touch, to remove a wrinkle on my forehead and two laughter dimples around my mouth. Dillerud further considered that my breasts were awry and should be straightened.”
Under the photograph a caption stated:
“SICKENING OFFER: The 25-year-old woman suffers from bulimia and is very thin. Nonetheless Dr Erik Dillerud offered to perform liposuction on her, in addition to a number of other beauty operations in order to improve her face. – As she did not say that she was ill, it was impossible for me to know that she was, Dillerud comments.”
The report read:
“She is young and beautiful – and very slim. For 12 years she has been fighting against anorexia and bulimia, and she still has a long way to go before she can be considered in good health. Nevertheless, according to the 25-year-old, the controversial Dr Erik Dillerud in Bærum had no reservations about performing liposuction on her – for a remuneration of NOK 13,800.
– He also offered to lift my eyebrows, to give my nose a more classical finishing touch, to remove a wrinkle on my forehead and two laughter dimples around my mouth. Dillerud further considered that my breasts were awry and should be straightened and that my nipples needed adjustment, said the 25-year-old, a previous finalist in the beauty contest ‘the face of the year’.
Warning
Good friends and the doctor treating her for bulimia at the National Hospital, Chief Doctor Trygstad, managed to persuade the 25-year-old that she nevertheless ought not to have the operation done.
– I now wish to warn other people who are in the same situation. I am aware of how desperate persons suffering from bulimia and anorexia might be and how far we might go in order to carry out alterations to our appearance. I thought that doctors had certain ethical norms to comply with, but it appears that some are prepared to do anything to earn money, says the young woman.
Chief Doctor Trygstad at the Paediatric Ward of the National Hospital has a long and particularly extensive experience in treating young people suffering from eating disorders. He considers that the offers which his patient says she received from Erik Dillerud are sheer madness.
– An experienced plastic surgeon ought to have been in contact with a sufficient number of people with behavioural problems to be able to see that this patient was ill. One may wonder whether money is all they think about, says Dr Trygstad.
Many people have regrets
He also considers that it would have been very natural for this plastic surgeon to ask the patient whether she was ill or had previously been hospitalised. – After all, says Dr Trygstad, it is the eating disorder, not the symptoms, that has to be treated.
A number of his bulimia patients have sought treatment from plastic surgeons.
– Many of them have regretted it later. Some have even sustained nerve damage (paralysis) as a result of undergoing liposuction. In Dr Trygstad’s opinion, many tragedies could have been avoided if the surgeon had first tried to establish whether the patient was ill.
The plastic surgeon Dr Erik Dillerud affirms that all patients arriving at Fornebuklinikken must sign a declaration, almost before they are allowed to enter. This includes information inter alia about previous and present illnesses.
– The security is in general better here than in public hospitals. But if the patient hides information about her illness, there is little that I can do, says Dillerud – But could you not see that this woman was ill?
– Because of my duty of confidentiality I am not able to comment on any individual patient. But, generally, if I suspect that a patient suffers from bulimia, she will never be operated on by me, assures the plastic surgeon and adds.
– However, I know of several surgeons who would operate without taking into account the patient’s condition in the way we do here. Anyhow, one patient in three who comes to us is refused because he or she is not fit for such an operation. For example, the person may be too overweight or too underweight to make it justifiable to carry out the desired intervention.
Not a judge
The 25-year-old states that it was initially her wish to have her bust lifted that made her solicit the services of Erik Dillerud and Fornebuklinikken.
– I came to his office and was told to undress. While standing there wearing only my knickers I asked ‘What can you do for me’. I obviously referred to my breasts and I was quite taken aback when he replied that he would propose alterations to my look from my forehead down to my knees, said the 25-year-old.
I would never have answered a question such as ‘What can you do for me’. The patient must know herself what she wants; it is not my job to be a judge of appearances, Dillerud maintains, rejecting her allegation.
According to the 25-year-old bulimic, who now is 176 cm tall and weighs 55 kg it was Dillerud who suggested that she undergo liposuction on her stomach, her thighs and hips. After the consultation, which lasted approximately 15 minutes, they agreed on the liposuction and to consider the other kinds of intervention later.
Made savings
– Since I am a student he asked me how I was going to pay, but I assured him that I had saved up enough money, says the young woman.
She lost her deposit of NOK 2,000 as she cancelled the operation a few days before it was to take place.
– It makes me a bit bitter to think, she says ironically, that it cost me NOK 2,000 to learn that I looked even worse than I thought.
Another plastic surgeon in Oslo surgically inserted a so-called slimming flask into her. At that time she weighed 10 kg less than today.
A poor self-image and dissatisfaction about one’s body is a distinctive feature of persons suffering from eating disorders.
– However slim a bulimic might be, she would always consider herself as overweight. As long as they are ill they will NEVER be satisfied with their own body or their appearance, says Dr Trygstad at the National Hospital.”
The first of the two short articles at the top of p. 23 of the paper was an interview with Mr Harry Martin Svabø:
“Should not occur
– I hope this is a rare error and that an apology has been made. It should obviously not occur, says Secretary General of the Norwegian Medical Association Harry Martin Svabø commenting on the bulimia patient who was offered liposuction. Without wishing to comment on this case in particular, he emphasises that the operating surgeon’s responsibility in ascertaining who should not be operated on is just as great as that of establishing who should be operated on.
– Probably the greatest art of medical science is to know what to do and what not to do, says Mr Svabø.
He does not believe that cosmetic surgery performed by plastic surgeons on patients suffering from, for instance, anorexia and bulimia constitutes a great problem.
We should be cautious not to minimise this problem, but I do not believe it occurs to a great extent. Our margins of error have to be extremely small and I also believe that they are, says the Secretary General.
Mr Svabø adds that plastic surgeons would normally be particularly aware that patients who seek their services might have other reasons than purely physical ones behind their wishes to be operated on.
– Since the adoption in 1989 of the new rules on recognition of specialist competence for plastic surgery the Norwegian Medical Association has received very few complaints about plastic surgery, says Mr Svabø.”
The other short article was entitled “Controversial Doctor” and read:
“Erik Dillerud has had to bear criticism also for his previous work within the practice. In 1988 the Norwegian Association of Plastic Surgeons warned its members against taking part in a world congress on liposuction which Dillerud had organised in Oslo. He has also attracted several law suits from patients who claim that they have been in part disabled and ruined after treatment by the Bærum doctor.
For several years Dillerud ran his private clinic on the island Snarøya outside Oslo, without having qualifications as a generalist surgeon or as a plastic surgeon. When new rules for plastic surgery were introduced in 1989, Dillerud obtained a dispensation for half a year, in order to enable him to acquire the requisite qualifications.
The Norwegian Medical Association was of the view that Dillerud did not present sufficient documentation on his qualifications and refused to recognise him as a generalist surgeon.
Not until October 1990 did Erik Dillerud obtain special recognition as a general surgeon. Only then was he able lawfully to run his practice at Fornebuklinikken.”
The article was accompanied by a photograph of Dr Dillerud with the following caption:
“A LOT OF CRITICISM: Erik Dillerud has attracted several legal actions taken by his patients.”
On 26 March 1993 Dr Dillerud and the Clinic instituted defamation proceedings against the applicants, requesting compensation for pecuniary and non-pecuniary damage and annulment (mortifikasjon) with respect to the following four statements:
Item 1. The text on the front page:
“For 12 years she has fought anorexia and bulimia. Nonetheless, according to the 25-year-old, Dr Erik Dillerud in Bærum had no reservations about performing liposuction on her. Good friends and Chief Dr Olav Trygstad of the National Hospital managed to dissuade her from undergoing the operation, which was to cost NOK 13,800.”
Item 2. “For 12 years she has been fighting against anorexia and bulimia, and she still has a long way to go before she can be considered to be in good health. Nevertheless, according to the 25-year-old, the controversial Dr Erik Dillerud in Bærum had no reservations about performing liposuction on her – for a remuneration of NOK 13,800.”
Item 3. “I thought that doctors had certain ethical norms to comply with, but it appears that some are prepared to do whatever to earn money, says the young woman.”
Item 4. “SICKENING OFFER: The 25-year-old woman suffers from bulimia and is very thin. Nonetheless Dr Erik Dillerud offered to perform liposuction on her, in addition to a number of other beauty operations in order to improve her face.”
The plaintiffs subsequently withdrew their request for annulment of the four statements.
By a judgment of 9 March 1995 the City Court ordered the applicants jointly and severally to pay Dr Dillerud NOK 400,000 in respect of pecuniary damage. The annual earnings of the Clinic was reduced by some NOK 1,3 million immediately after the reportage and it took some two years to recover these losses. As regards non-pecuniary damage, the newspaper and the journalist were ordered jointly and severally to pay Dr Dillerud NOK 15,000 and the newspaper alone was ordered to pay an additional NOK 250,000. With respect to the plaintiffs’ costs, the applicants jointly and severally were ordered to pay NOK 50,000 and, the first applicant, NOK 140,163.
The City Court noted, inter alia, that bulimia was an illness which was hard to detect; the patient would normally do anything that he or she could to conceal the illness. Ms J.’s withholding of certain information confirmed this. The City Court also observed that Verdens Gang had in a one-sided fashion relied on statements made by a patient who, the paper was aware, suffered from psychological problems, bulimia being an illness of a primarily psychological nature. The paper had deliberately and negligently omitted to make the further inquiries required by the nature of the matter at hand. The journalist had not awaited Dr Dillerud’s comments after he was released from his duty of confidentiality. This omission had been the basis for a sensationalist coverage for which there was no factual support. The brief article entitled “Controversial Doctor” and the caption stating that Dr Dillerud had been the subject of several legal actions taken by former patients, were also found to be factually incorrect and biased. The advice to boycott the world conference had been related to a general dispute between plastic and cosmetic surgeons and entailed no professional criticism of Dr Dillerud. As regards three actual lawsuits, two had been dropped and one settled out of court.
The applicants appealed against the City Court’s judgment to the Borgarting High Court (lagmannsrett), which held a hearing during the period from 12 to 21 November 1997. The City Court heard evidence from the second applicant and Mr Bent Olufsen, Chief Editor of Verdens Gang, Dr Dillerud and 15 witnesses, not including Ms J. who died shortly before the hearing.
By a judgment of 17 December 1997, the High Court upheld the City Court’s judgment, except that the award of compensation for pecuniary damage was amended so as to compensate both Dr Dillerud and the Clinic, and ordered the applicants jointly to pay the plaintiffs NOK 284,383,50 with respect to their costs before the High Court. The judgment included the following reasons.
The High Court was only called upon to decide the question of defamation as such in relation to a claim for compensation and reached the same conclusions as the City Court in this respect. The High Court considered the newspaper report as a whole, while taking as its starting point the four statements. The Court considered the impression which the coverage would have on the ordinary reader.
At the outset the High Court found beyond doubt that the front page and the reportage as such left the impression that Dr Dillerud had acted in a manner which should be severely criticised, and that this criticism was endorsed not only by Ms J. but also by the newspaper and Dr Trygstad.
Items 1 and 2 would give the ordinary reader the impression that Dr Dillerud had knowledge of Ms J.’s eating disorder. It was undisputed that, from a professional and ethical point of view, it would be unjustifiable to carry out liposuction on a patient with eating disorders unless there had been prior consultation with the doctor treating the patient for such disorders. It was considered unethical because of the loss in self-esteem and aggravation of psychological problems that this kind of medical intervention was likely to cause on a person suffering from bulimia. Items 1 and 2 constituted on their own allegations of serious culpability on the part of Dr Dillerud.
Item 3 had been presented as Ms J.’s own assessments, but the use of such expressions as “I thought” and “it appears as if” did not remove its accusatorial character involving unethical behaviour.
Apart from containing the value-judgment “Sickening Offer”, item 4 contained a statement which appeared as if it was the newspaper’s own. Since it was followed by a quotation from Dr Dillerud that he was not aware that Ms J. suffered from bulimia, item 4 did not appear to accuse him of such knowledge.
Unlike the City Court, the High Court did not find that items 1, 2 and 3 in isolation could be interpreted as an allegation of greed on Dr Dillerud’s part. The High Court did not find it necessary to consider whether the reportage as such gave the impression of greed.
The High Court did not find any elements in the report as a whole which removed the impression that Dr Dillerud was accused of being prepared to perform liposuction on Ms J. despite his being aware that she suffered from bulimia. Although it was mentioned that Dr Dillerud himself had stated that he was unaware of this fact, Ms J. had alleged the contrary and Mr Trygstad’s comments and the paper’s description were both based on her version.
There was no doubt that the allegations were damaging to Dr Dillerud’s personal reputation, which was emphasised by the fact that Ms J., Mr Trygstad and Mr Svabø had criticised on ethical grounds what they believed had happened. Moreover, the allegations were capable of damaging his professional reputation.
The High Court further considered that no evidence had been adduced which could prove the truth of the accusations. There was nothing to support the assumption that, when it was agreed that Dr Dillerud should perform liposuction on both of Ms J.’s thighs, he was aware that she suffered from bulimia. The High Court, moreover, did not find it substantiated that there were any circumstances suggesting that Dr Dillerud ought to have been aware that Ms J. was ill or that he ought to have carried out further investigations. Ms J. wished to be operated on by Dr Dillerud and she must have understood that it was important that her illness was not revealed as she concealed it when filling in the questionnaire. She had no external symptoms at this point in time and she had previously succeeded in concealing her illness from other doctors. The fact that she was slim and somewhat underweight ought not of its own to have aroused suspicion about eating disorders or made the removal of fat concentrations inadvisable. Ms J. was slightly shorter and heavier than stated in the newspaper.
The High Court found that the second applicant had behaved negligently in her report. Although she was not responsible for the front-page, the text of item 1 essentially repeated item 2 drafted by her. She had based her sensational report on information from Ms J. whom the journalist knew had psychiatric problems. This information, moreover, lacked a factual basis. The journalist sought the comments from Mr Trygstad and the Secretary General of the Norwegian Medical Association. While this might have provided a possible corrective to Ms J.’s assessments, it was of limited value as their comments were based on Ms J.’s version of what had happened during her consultation with Dr Dillerud.
Thus the impugned allegations were untrue. Even assuming that their purpose was justified in order to protect the interests of others (Article 249 (3) of the Penal Code), it could not be said that the journalist had exercised due caution. There was no time-pressure. For the second applicant it must have been apparent that Dr Dillerud may have possessed information of importance for assessing the accuracy of the information provided by Ms J. In this situation it was negligent of the paper and the journalist to publish the report in question without taking further steps to reach Dr Dillerud other than contacting his office.
The High Court considered that the impugned newspaper coverage concerned a matter of general interest calling for strong protection of the right to freedom of expression. However, in its view, it was not justified to make untrue defamatory statements about Dr Dillerud. The newspaper did not limit itself to reiterating Ms J.’s allegations. The newspaper made its own accusations for which there was no basis, which was attributable to the journalist’s negligence since, for instance, there were no time constraints or other circumstances which dispensed the paper from awaiting or seeking more information. The possible beneficial effects of the coverage could have been achieved without addressing any accusations against Dr Dillerud. The interest in protecting freedom of expression could not exclude the person who is unjustifiably injured by the accusations from claiming compensation for the damage caused.
The High Court considered that the case differed from that determined by the Court in the Jersild v. Denmark judgment of 23 September 1994 (Series A no. 298), where the applicant journalist did not in any way identify himself with the impugned allegations. Nor did the Strasbourg Court’s case-law otherwise suggest that Dr Dillerud’s claim of protection against unjustified accusations must give way to freedom of expression. The applicants were thus liable under Section 3-6, second subsection, to compensate Dr Dillerud and the Clinic for the damage suffered.
The applicants sought to appeal against the above judgment but, on 12 June 1998, the Appeals Selection Committee of the Supreme Court refused them leave to appeal.
Under Norwegian defamation law, there are three kinds of responses to unlawful defamation, namely the imposition of a penalty under the provisions of the Penal Code, an order under Article 253 of that Code declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969) to pay compensation to the aggrieved party. Only the latter was at issue in the present case.
Section 3-6 of the aforementioned Act reads:
“A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable.
If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay compensation. The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation...”
Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Articles 246 and 247 of which provide:
“Article 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months.
Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting, or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”
A limitation to the applicability of Article 247 follows from the requirement that the expression must be unlawful (rettstridig). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
In a civil case concerning pre-trial reporting by a newspaper, the Supreme Court found for the newspaper, relying on the reservation of lawfulness (rettsstridsreservasjonen), even though the impugned expressions had been deemed defamatory. It held that, in determining the scope of this limitation, particular weight should be attached to whether the case was of public interest, having regard to the nature of the issues and to the kind of parties involved. Regard should be had to the context in which, and the background against which, the statements had been made. Moreover, it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject-matter and the object of the case (Norsk Retstidende [The Norwegian Law Report] 1990, p. 636, at p. 640).
Further limitations on the application of Article 247 are contained in Article 249, the relevant part of which reads:
“1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced...
3. Punishment may not be imposed under Articles 246 and 247 on any person who is under a duty or obligation to express his opinion or who has expressed his opinion in legitimately taking care of his own or another person’s interests and where it has been established that he has displayed proper care in every respect.”


ITEMID: 001-92959
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LAWYER PARTNERS, A.S., v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant is a private limited company with its registered office in Bratislava. The applications on its behalf were lodged by Mr D. Paľko and Mr M. Morong, the Chairman and Vice-Chairman of its managing board.
6. On 15 July 2005 the applicant company concluded a contract with Slovak Radio, a public-law institution. Under that contract, taken together with two additional ones concluded on 20 September 2005 and 27 January 2006, the applicant company acquired the right, in exchange for compensation paid to Slovak Radio, to recover unpaid broadcast receiver licences in 355,917 cases, plus additional sums for default in those payments.
7. On 20 October 2008 the Bratislava I District Court confirmed the validity of the above contracts. The decision became final on 5 November 2008.
8. The applicant company was obliged to sue those persons who had refused to pay the debt which it had acquired the right to recover. The applicant company prepared individual actions with a request for payment orders to be issued against the debtors. Given the number of persons concerned, the actions were generated by means of computer software and recorded on DVDs. The DVDs were sent to the district courts concerned, accompanied by an explanatory letter.
9. Thus the applicant company, on 31 March 2006 and 24 July 2006, lodged actions, in electronic form, with several district courts. On 19 October 2006, after officials of the Ministry of Justice had stated that courts were in a position to register such actions, the applicant company resubmitted the first group of actions to the courts concerned on DVDs. The courts refused to register the actions, indicating that they lacked the equipment to receive and process submissions made and signed electronically. Further relevant details of the applications under examination are set out in Appendix I.
10. In one case the applicant company submitted, on 14 December 2006, with the agreement of the Svidník District Court, a printed version of the 379 actions it had lodged on a DVD on 31 March 2006. The documents in support of the claims remained available on the DVD exclusively. The file numbers indicate that the District Court registered those actions as having been lodged in 2007.
11. On 15 December 2008 the applicant company informed the Court that its claims relating to the actions which the district courts had refused to register had become statute-barred.
12. In 2006, following the district courts’ refusal to register the actions it had submitted on DVDs, the applicant company lodged a complaint with the Constitutional Court in respect of each individual refusal. Referring to Article 6 § 1 of the Convention and its constitutional equivalent, it alleged a violation of its right of access to a court.
13. The Constitutional Court rejected the complaints in the cases under consideration as having been lodged outside the statutory time-limit of two months. The decisions stated that the applicant company had earlier learned, in the context of its previous attempts to lodge actions electronically, that district courts lacked the necessary equipment for processing such actions and had failed to lodge a complaint with the Constitutional Court at that time. The Constitutional Court considered it irrelevant that the above-mentioned time-limit had been complied with in respect of the district courts’ refusal to register actions in those cases which underlay the constitutional complaints under consideration (further details of the individual proceedings are set out in Appendix I).
14. On 31 March 2006 several courts asked the Ministry of Justice for instructions as to how they should process the applicant company’s submissions lodged in electronic form. The Ministry advised the courts to wait until the position had been analysed.
15. In a letter of 3 April 2006, the Ministry stated that as ordinary courts did not have an electronic registration facility, the conditions for receiving submissions in electronic form as laid down in Law no. 215/2002 Coll. were not met.
16. At meetings with presidents of district and regional courts held on 24 November 2006 and from 1 to 2 February 2007 the Ministry of Justice concluded that ordinary courts were duly equipped for receiving submissions bearing a secured electronic signature.
17. A press release issued by the Ministry of Justice on 16 October 2008 indicates that the Ministry had published on its website the electronic addresses of individual courts and information about the filing of submissions signed electronically.
18. Article 42 § 1 of the Code of Civil Procedure, as amended with effect from 1 May 2002, reads:
“Submissions to a court can be made in written form, by an oral statement which is recorded and transcribed, by means of electronic devices subject to the submission bearing a secured electronic signature in accordance with the applicable legislation, by telegraph or by fax.”
19. Regulation no. 543/2005 governs, inter alia, the organisation of work within district courts and regional courts, including their registries. The relevant provisions read:
“Submissions received by the registry which contain a petition for proceedings to be brought shall be registered by means of technical and software devices approved by the Ministry of Justice and designed for processing the agenda of the courts.”
“Receipt of submissions made by electronic means and bearing a secured electronic signature
Submissions received by means of electronic devices and having a secured electronic signature shall be dealt with in accordance with the applicable legislation. Such submissions are to be transmitted to the central office of the court to be processed in accordance with section 129.”
20. The Act on Electronic Signature 2002 governs the establishment and use of electronic signature, the rights and obligations of persons in that context and the protection of documents signed electronically (section 1).
21. At the relevant time, Regulation no. 542/2002 governed the use of electronic signature in, inter alia, administrative relations. It was issued by the National Security Authority and entered into force on 1 October 2002. Sections 6 to 12 set out details on the establishment and functioning of an electronic registry within public authorities which use secured electronic signature, the filing, processing and handling of electronic documents, as well as their format and transfer between the dispatcher and the addressee.
22. Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, this period commences when the plaintiff could have become aware of them.
23. In the majority of the cases examined in the course of 2007 the Constitutional Court took the same approach as indicated in paragraph 13 above, namely that the period of two months under section 53(3) of the Constitutional Court Act 1993 had started running not later than in April 2006, when the applicant company had learned for the first time that ordinary courts were not in a position to register submissions in electronic form.
24. In a different decision delivered on 4 January 2007, the Constitutional Court declared admissible a complaint in respect of the refusal, by the Čadca District Court, to register actions lodged electronically on 24 July 2006 (proceedings no. III. ÚS 7/07). In its judgment on the merits of 20 December 2007, the Constitutional Court found a violation of Article 6 § 1 of the Convention. It held that the relevant law entitled parties to file submissions to courts in electronic form. Public authorities were obliged to establish facilities for receiving and processing such submissions. In the above case the Constitutional Court ordered the Čadca District Court to proceed with the actions lodged on DVDs by the applicant company on 24 July 2006. Prior to that, the applicant company had informed the Constitutional Court of the Čadca District Court’s earlier refusal to accept a different set of actions which had been lodged on DVDs on 31 March 2006.
25. Since 2008 all chambers of the Constitutional Court have systematically approached cases of this type in the manner described in the preceding paragraph. Thus, in twenty-four other cases concerning similar complaints lodged in 2006 the Constitutional Court counted the period of two months from the moment when the applicant company had been informed about the refusal to register each specific submission filed electronically. This approach has been applied even in cases which concerned a second refusal to register an identical submission.
26. In those cases the Constitutional Court found a violation of the applicant company’s right of access to a court under Article 6 § 1, holding that the relevant law obliged courts to accept actions submitted by electronic means and that there existed no justification for their refusal to do so. It ordered the district courts concerned to accept those actions as having been lodged on the date when they had initially received them and to process any submissions signed electronically.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1