ITEMID: 001-85084
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JULY AND SARL LIBERATION v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa
TEXT: 6. The first applicant, Mr Serge July, was born in 1942 and lives in Paris. He was the publication director of the national daily newspaper Libération. The second applicant, the private limited company SARL Libération, was represented by Mr July, who was its manager at the time.
7. On 19 October 1995 Mr Bernard Borrel, a French judge who at the time had been seconded as technical adviser to the Djiboutian Minister of Justice, was found dead 80 km from the city of Djibouti. His half-naked and partially burnt body was lying some 20 m below a remote road. In early November 1995 the investigation by the local gendarmerie concluded that he had committed suicide by self-immolation.
8. In November 1995 a judicial investigation was opened in Toulouse “to establish the cause of death”, and the judge’s body, on its repatriation to France, was interred in Toulouse. In February 1996 an autopsy was carried out on the judge’s remains and its conclusion, notified to his widow on an unspecified date, was that he had committed suicide after dowsing himself in petrol.
9. In February 1997 the widow of the deceased judge, disputing that finding, filed a complaint as a civil party against a person or persons unknown for premeditated murder. In April 1997 a judicial investigation was opened on that basis. In July 1997 a private forensic report, commissioned by the civil party, concluded that in view of the total absence of burn residue in the judge’s lungs, he must already have been dead when his body caught fire. The judicial investigation was subsequently transferred to Paris, where the case was assigned in late October 1997 to two investigating judges at the Paris tribunal de grande instance, namely Ms Moracchini, assisted by Mr Le Loire.
10. In March 1999 the investigating judges visited Djibouti without the civil parties.
11. While Mrs Borrel was challenging the suicide conclusion towards which the judicial investigation seemed to be heading, a witness – a former member of the Djiboutian Presidential Guard who had found asylum in Belgium – came forward in December 1999 and lent support to the theory of premeditated murder, implicating the former chief of staff of the President of Djibouti, the then incumbent President Ismaël Omar Guelleh. His testimony proved highly controversial and was widely reported in the press and other media. In January 2000 the investigating judge, Ms Moracchini, interviewed this witness in Brussels, after which he challenged her impartiality, alleging that she had put pressure on him to withdraw his testimony. Lastly, in early March 2000, the investigating judges, accompanied by the director of the Paris Institute of Forensic Medicine and the Deputy Public Prosecutor of Paris, paid another visit to Djibouti in order to stage a reconstruction at the scene, without the civil parties being present. They had requested to attend but had been refused visas. In the context of the judicial investigation in respect of the premeditated murder charge, three judges’ unions, including the Union of Prosecutors and Judges (Union syndicale des magistrats – “the USM”), had applied on 2 February 2000 to be joined to the case as civil parties. For that purpose, the Chairman of the USM, Mr Valéry Turcey, sent a letter to Ms Moracchini and attached the USM’s decision taken by a vote of 28 January 2000 to apply for civil-party status in the proceedings. The decision was signed by Mr Riolacci, in his capacity as a member of the USM’s national council.
12. It was in these circumstances that, on 13 March 2000, a press conference was held in Paris for the purpose of publicising a request sent to the Minister of Justice by Mrs Borrel’s lawyers for an investigation to be carried out by the General Inspectorate of Judicial Services concerning the above-mentioned investigating judges. During the press conference Mrs Borrel, her lawyers Mr Morice and Mr de Caunes, and a number of judges acting in the context of their union duties made public certain questions and criticisms about the way the judicial investigation was being handled.
13. On 14 March 2000 the national daily newspaper Libération published an article entitled “Death of a judge: widow attacks judges and police”. This article, signed by Ms Brigitte Vidal-Durand, reported on the press conference held the day before.
14. The article in issue read as follows:
“‘With one death, two orphans and a widow, what more do they want? Who are they protecting? I don’t understand. I no longer understand anything.’ Five and a half years after the discovery of his charred body on 19 October 1995 in Djibouti, Elisabeth Borrel still has no idea ‘why or how’ her husband, Judge Bernard Borrel, died. Challenging the official and increasingly unsound version that he committed suicide, she has made public a request for the case to be investigated by the General Inspectorate of Judicial Services at a time when the investigating judges, Roger Le Loire and Marie-Paule Moracchini, have actually just come back from Djibouti.
Bias. Sent yesterday to the Minister of Justice by her lawyers Olivier Morice and Laurent de Caunes, the request concerns the conditions in which the judicial investigation is being carried out. She complains that the judges showed bias in the examination of a witness, a former member of the Presidential Guard, who had come forward to lend support to the murder theory.
At her press conference in Paris yesterday, Elisabeth Borrel was flanked by Dominique Matagrin, Chair of the Professional Association of Judges and Prosecutors [Association professionnelle des magistrats] (APM, right-wing), and Anne Crenier, Chair of the Union of the National Legal Service [Syndicat de la magistrature] (SM, left-wing), which are civil parties in the case together with the Union of Prosecutors and Judges [Union syndicale des magistrats] (USM, moderate).
Accumulation. The conduct of the judicial investigation in the Borrel case had been ‘farcical’ [rocambolesque], Dominique Matagrin alleged, while Anne Crenier denounced ‘the accumulation of anomalies’. Herself a judge, Elisabeth Borrel commented yesterday that her ‘husband’s character [had] been investigated, in the search for evidence of paedophilia and corruption’, adding ‘they’ve tried to dig up a mistress, they’ve gone through his accounts – and I’m talking about the action of the police’.
As regards the judges’ action, her comments were equally as harsh, because they have been slow: it was four months before an autopsy was performed, more than a year before they obtained the report, eighteen months before the first visit of a judge to Djibouti, two years before testimony was taken from a witness (except from herself and a chaplain), two years before a second forensic report was ordered. At the start of the judicial investigation the local judges ‘questioned our cleaning ladies and the children in the street. But not my husband’s minister’ (Judge Borrel had been seconded to the Minister of Justice of Djibouti). The reconstruction? Elisabeth Borrel says she ‘doesn’t understand’ it: ‘my husband is supposed to have climbed down a five-metre cliff, on foot, covered in petrol’. ‘Holding a lighter in his hand, because he was in his underwear,’ adds Oliver Morice.
Flood. Then there are some obvious gaps. Her husband’s medical records seem to have ‘disappeared’ in a ‘highly selective flood’, because the same hospital still has the records for one of the couple’s children. Gone too are the military checkpoint and register of persons entering the secure area, 80 km north of Djibouti, where Bernard Borrel’s body was found.
In their request for an inspection, the lawyers accuse the two judges of ‘discussing more with the media than with the civil party’. They claim that they read on 3 March in [the newspaper] France Soir that the two judges were leaving for Djibouti. On Sunday night they saw, on the programme Capital on [the French television channel] M6, Roger Le Loire taking part in a reconstruction in another case in Djibouti [concerning the murder of a French serviceman], with journalists present.
When contacted yesterday, neither the Ministry, nor Roger Le Loire, who in the meantime had returned to Paris, wished to comment. But the Djiboutian embassy in Paris was quick to put things straight. It explained yesterday in a press release that the two judges’ assignment ‘will mainly have the result of dispelling any doubt’ after ‘unfounded accusations’.”
15. On 14 March 2000 the investigating judges concerned brought proceedings against Mr July, in his capacity as publication director, and the newspaper Libération, for being civilly liable, directly summoning them to appear before the Nanterre Criminal Court for committing the criminal offence of public defamation against public officials, as provided for by sections 23, 29(1) and 31(1) of the Act of 29 July 1881 and punishable under section 30 of that Act. This was on account of the publication of the newspaper article of which the following four passages were considered defamatory:
“1. Bias. She (Mrs Borrel) complains that the judges showed bias.
2. The conduct of the judicial investigation had been ‘farcical’ (rocambolesque), Dominique Matagrin alleged.
3. While Anne Crenier denounced ‘the accumulation of anomalies’.
4. Because they [the investigating judges] have been slow.”
16. In June 2000 the case was withdrawn from the two investigating judges and transferred to another investigating judge.
17. In a judgment of 4 July 2000, the Criminal Court dismissed the request to include in the proceedings the whole of the file from the judicial investigation that had been criticised. The case was set down for hearing successively on 26 September 2000, 12 December 2000 and 14 February 2001. At that last hearing, the accused, Mr July, who had initially called a number of witnesses in the context of his offer to adduce evidence, finally refrained from relying on the veracity of the defamatory comments and used the defence of good faith.
18. In a judgment of 13 March 2001, the Criminal Court acquitted the two defendants. The court began by setting out as follows the judicial context in which the article had been published:
“Bernard Borrel, a judge, died in Djibouti where he had been posted for a few months, on 18 or 19 October 1995.
The circumstances of the death of Mr Borrel, whose charred body was found at the bottom of a cliff, with a lighter in his hand, have not been elucidated to date. ...
In the judicial investigation which has since been opened on a charge of premeditated murder, against a person or persons unknown, it appears that Mrs Borrel has for several years refused to accept the theory of suicide and supports the hypothesis of a political crime potentially implicating senior officials in Djibouti.
At the time of the publication of the offending article, the case had already received a certain amount of media coverage because of the broadcasting on [the French television channel] TF1 of an interview with a witness lending support for the criminal hypothesis.
It was in February 2000 that the investigating judges learnt from an Agence France Presse newswire of an application from Mrs Borrel’s lawyers to have the case withdrawn from them.
A few days before the press conference was held, the two investigating judges, together with an expert, went to Djibouti to carry out acts within their remit in the absence of the civil party and her lawyers, who had not been invited to attend.
It was following this investigative measure, of which the civil party and her lawyers were very disapproving, that a press conference – without [the investigating judges] being notified – was held on 13 March 2000 and gave rise the next day to an article in the daily newspaper Libération. ...”
19. The court then considered that three of the offending passages were not defamatory. As regards the judicial investigation being “rocambolesque” (farcical), the court observed that this adjective was derived from “Rocambole”, the name of a character featuring in serialised novels by Ponson du Terrail, and that it was used to describe a farcical situation, full of extraordinary ins and outs, as one might find in those novels. After noting that Mr Matagrin had, in a number of letters, contrary to the various statements given during the proceedings, denied using that term, but had not questioned the good faith of the journalist who wrote the article, the court found that the offending word was unquestionably polemical in nature but did not constitute in itself an attack on the honour and reputation of judges and that, whilst the expression undermined the image of a dispassionate judicial system, it was an example of polemical language falling within the free democratic debate surrounding judicial life that the judiciary could not oppose, unless one were to prohibit any criticism about the course of a judicial investigation. The reference to an “accumulation of anomalies” was found not to be related to the person in charge of the judicial investigation but to the anomalies identified in the case file and strongly conveyed the dissatisfaction of the civil parties. As to the “slowness attributable to the investigating judges”, the court considered that this criticism fell squarely within the public debate on the functioning of the judicial system and on its sluggishness, adding as follows:
“... judges have to accept free public scrutiny, and more specifically that of parties to proceedings and of the press, vis-à-vis their action, provided that criticism – harsh though it may be – does not contain any precise accusation impugning their intellectual honesty, professional integrity or devotion to public service. In the present case there can be no serious charge – to the extent of falling within the scope of criminal law – on account of the reproduction of a complaint against judges for being slow that was made at a press conference held four and a half years after the discovery of Mr Borrel’s body, and during which the judge’s widow lamented that she still had no idea how or why her husband had died.”
Accordingly, the only passage regarded as manifestly damaging to the judges’ honour and reputation was the one that concerned the civil party’s complaint that “the judges had shown bias”.
20. However, the court accepted the applicants’ defence of good faith, having regard to the four conditions to be satisfied (pursuit of legitimate aim, absence of personal animosity, use of prudent and dispassionate language, requisite quality and seriousness of investigation), considering that the newspaper, by reporting on the criticism of the judicial investigation into the death of Judge Borrel, had simply been fulfilling its mission to inform the public. The court unequivocally recognised the legitimacy of the aim pursued (interest for public opinion, publicising of request for inspection by judicial inspectorate) and the absence of personal animosity. As regards the use of prudent and dispassionate language, the court, in view of the blatant antagonism between the civil parties and the investigating judges, remarked upon the vehemence of the comments, but considered that the journalist had taken the necessary distance by using the conditional tense in the only passage recognised as defamatory. Finally, as regards the last requirement, the court found that, by refraining from approving the offending expressions reported and by taking the requisite distance, the newspaper had avoided creating any confusion in readers’ minds between the speaker’s original comments and the analysis by that newspaper.
21. In submissions filed with the Eighth Criminal Division of the Versailles Court of Appeal, on an appeal by the applicants, the civil parties relied on the four allegations already examined and sought recognition that they were defamatory. They further complained that the court had failed to impugn the lack of prudent and dispassionate language, in so far as journalists were supposed to convey objective and documented information and as they had a duty of preliminary investigation in order to ensure the reliability and accuracy of their information. The public prosecutor, for his part, left the matter to the discretion of the Court of Appeal.
22. At the hearing set down for 10 July 2001, the Versailles Court of Appeal adjourned the case until a hearing of 26 September 2001. In a judgment of 14 November 2001, the Eighth Criminal Division of the Versailles Court of Appeal, presided over by Judge Riolacci (with Judges Renauldon and Quancy-Jacquemet also on the bench), partly set aside the judgment of acquittal, finding defamatory, in addition to the allegation of bias on the part of the judges, the accusation that the “conduct of the Borrel investigation had been ‘farcical’ (rocambolesque)”, and ruling as follows:
“It appears from the examination of witnesses before the court and from the attestation provided by Dominique Matagrin, Chair of the Professional Association of Judges and Prosecutors [Association professionnelle des magistrats], that he had used this word in a quite different formulation, which had not reflected an unequivocal desire to denounce his colleagues’ manner of investigation.
That being said, the adjective ‘farcical’ [rocambolesque], when applied to the manner in which a judicial investigation was conducted, went beyond the context of a simple debate since its aim was to denounce a practice that was unconventional and bizarre, of course alluding to the adventures of an unscrupulous and scheming character who lived by his wits, but above all implying that the judicial investigation had been flying in the face of common sense, without any rationality.”
23. As to the allegations concerning an “accumulation of anomalies” and “slow judges”, the court endorsed the grounds adopted by the court below and upheld the judgment in that respect.
24. The Versailles Court of Appeal also set aside the judgment appealed against in so far as it had admitted the first applicant’s defence of good faith, finding as follows:
“As to the defence of good faith
... The parties agree that the newspaper Libération was pursuing a legitimate aim in informing its readers about a press conference on a subject that had taken on a national dimension on account of its developments; furthermore, [the investigating judges] have never claimed that the article’s author showed any personal animosity towards them.
In addition, it should be observed, first of all, that Article 10 § 2 of the European Convention on Human Rights provides, with regard to the freedom to hold opinions and the freedom to impart information, that the exercise of those freedoms may be subject to certain formalities, conditions, restrictions or penalties.
In the present case, the relative ‘inexperience’ alleged by the journalist, claiming that reporting on court cases was not her strong point, cannot seriously be argued since she had already dealt with this subject.
The author clearly preferred not to report on the subject in the form of an interview and opted for a compromise solution involving the use of inverted commas, which considerably facilitated her task.
She had a duty to assess the full impact of the most suggestive terms used, such as ‘bias’ and ‘farcical’, and of their visual prominence in the article.
She was not unaware of the fact that the criminal case about which the press conference was held had entered into a phase of acute conflict, involving a particularly serious attack on the investigating judges; in choosing a certain manner of informing her readers, albeit indirectly, about the status of an ongoing judicial investigation of a particularly sensitive nature, the journalist had a duty to take certain precautions and to carry out a particularly serious investigation, since she could not have been unaware of the aim pursued by the civil parties.
In particular, by distorting Dominique Matagrin’s comments, to give them a completely different emphasis, the author of the article acted irresponsibly.
Moreover, she cannot seriously claim not to have managed to get in contact with the two judges concerned: Joëlle Lecoz, an investigating judge’s assistant, has stated that she cannot remember any call from the journalist. In any event, the journalist, who had some knowledge about judicial issues, was under an obligation, in view of the deadline for the paper to go to press, to gather various items of information beforehand, even before the press conference, and also to indicate in her article that, in the following days, she would ensure that the persons thus criticised had the opportunity to reply.
By choosing, as to the form, to report it by adopting a style other than that of an interview, the author could not have been unaware that the parts of the article not placed between inverted commas could be attributed to her.
Contrary to the reasoning given on this point by the courts below, the impugned article does not strike a balance between the respective positions. To be sure, by failing to ask either the public prosecutor’s office or the main parties concerned about the factors that might have affected the progress of the investigation, the journalist logically did not put herself in a position to strike such a balance, in particular as in the presentation of the article’s paragraphs a significant amount of space was left for the positions of other judges representing their unions.
This flagrant breach of the duty to ensure accuracy, seriousness and prudence, with mistakes in the dates, cannot be justified by the alleged urgency. The publication director, being well-informed about issues of society, had an obligation to scrutinise the article more stringently, especially as he was aware of the author’s relative lack of experience. ...”
25. The Court of Appeal found the first applicant guilty and held that the second applicant was civilly liable. It gave the first applicant an indictable-offence sentence in the form of a fine of 10,000 French francs (FRF) (about 1,500 euros (EUR)), also awarding FRF 10,000 in damages to each of the civil parties, and ordered the publication in the newspaper and another national daily of the operative provisions of the judgment, for a cost not exceeding FRF 15,000 (about EUR 2,286). It further ordered the applicants, jointly and severally, to pay the civil parties FRF 20,000 (about EUR 3,000) for costs not covered by the State.
26. The applicants appealed on points of law, relying in particular on Article 10 of the Convention.
27. In a judgment of 14 January 2003, the Court of Cassation dismissed the appeal on points of law against the judgment of 14 November 2001, ruling as follows:
“In refusing to accept the defendant’s defence of good faith, after rightly finding defamatory the criticism of the investigating judges for conducting their investigation in a biased and farcical manner, the second-instance court gave its ruling on the grounds now set out by the appellant.
Having regard to those grounds, as they stand, the Court of Appeal justified its decision under sections 29 and 31(1) of the Act of 29 July 1881 and under Article 10 § 2 of the European Convention on Human Rights.
Only attacks of a theoretical and general nature may benefit from the freedom attached to criticism of the operation of the basic institutions of the State.
Whilst it is legitimate to inform the public about the operation of the courts, the aim thus pursued does not exempt journalists from the duties of prudence, caution and objectivity in the expression of thought; the right of free criticism cannot extend to personal attacks. ...”
28. In parallel to those proceedings, Mr Morice, the lawyer acting for Mrs Borrel, was prosecuted for aiding and abetting public defamation against the investigating judge responsible for the “Borrel case” at the material time, following the publication by the national daily newspaper Le Monde, which was prosecuted as the principal offender, of an article dated 7 September 2000 entitled “Borrel: Judge Moracchini’s impartiality called into question”.
29. In a judgment of the Nanterre Criminal Court dated 4 June 2002, he was found guilty, given an indictable-offence sentence in the form of a fine and ordered to pay damages. In the appeal proceedings, before the Versailles Court of Appeal, Mr Morice found out that the judge presiding over the Eighth Criminal Division of that court was Judge Riolacci. Acting as counsel for Mrs Borrel, and thus having access to the investigation file, he found, on reading the attendance list for the meeting of the USM’s national council on 28 January 2000 when its members had decided to apply to join the Borrel proceedings as a civil party, that Judge Riolacci had signed it in his capacity as a member of the national council. On 27 February 2003 Mr Morice filed an application with the President of the Versailles Court of Appeal seeking the judge’s replacement, arguing that the case could not be heard by a judge who had personal knowledge of the Borrel file and who had participated in his union’s decision to join the proceedings as a civil party.
30. That application was not examined on the merits. In an order of 19 March 2003, the Court of Appeal found that the claim had become devoid of object as Judge Riolacci had withdrawn for “personal reasons” which prevented him from sitting in the appeal hearing set down for 27 March 2003. These facts were the subject of the application in Morice v. France (no. 36427/03), which on 17 January 2006 was declared inadmissible for lack of victim status by a committee of three judges set up in accordance with Article 27 of the Convention.
31. On 16 October 2005 Libération published an article entitled “Appeal for the truth about the murder of Judge Borrel”:
“A French judge was murdered on 19 October 1995 in Djibouti. For fear of losing a French military base and the capacity to intervene in a geopolitically sensitive area, everything has been done to make this crime look like suicide. For some ten years now, there has been no end to the pressure and manipulation designed to cover up the truth. Only the courage and determination of Elisabeth Borrel, and the support she has received, have prevented this case from being swept under the carpet once and for all.
On 19 October 1995, 80 km from Djibouti, the partly burnt body of the French judge Bernard Borrel, adviser to Djibouti’s Minister of Justice, was discovered at the foot of a cliff. This death soon became one of those ‘exquisite corpses’ about which the official truth must hastily be announced, that of suicide. Unfortunately for the instigators of this theory, the various shortcomings in the initial investigation (no autopsy, missing X-rays, etc.) and judicial investigation up to June 2000, as revealed by the judge’s widow, Elisabeth Borrel, and her lawyers, with the support of the Union of the National Legal Service [Syndicat de la magistrature], have been publicly denounced. The withdrawal of the case from the two investigating judges in June 2000 was to mark a turning point in the judicial investigation.
The hypothesis that Bernard Borrel was murdered has now been confirmed by the developments in the investigation and by forensic medical and technical examinations following a fact-finding visit to the scene in February 2002. The discovery of a head injury caused by a dangerous instrument and an injury sustained in self-defence, namely a fractured arm, together with the detection of a second inflammable liquid from a container other than the jerrycan found at the scene, clarify once and for all that it was murder.
Reasons of State versus Justice
Progress in the judicial investigation has also been delayed and hindered by the government’s direct acts of blockage and pressure when requests have been made for the declassification of documents held by the DGSE [the French external intelligence agency] and the DST [the French domestic intelligence agency]. Those attempts at obstruction, combined with a barrage of legal actions against Elisabeth Borrel’s lawyers, the Union of the National Legal Service and material witnesses who have dared to implicate the President of Djibouti’s entourage, suggest that further intimidation can be feared. A judicial investigation was opened in Versailles in early 2003 for the offence of procuring a person to give false evidence, after detailed statements by Djiboutian witnesses implicating high-ranking officials in the country, especially the current Public Prosecutor of Djibouti and the Head of Secret Services.
The announcement on 29 January by the Ministry of Foreign Affairs that the French case file was to be handed over to the Djiboutian authorities, in breach of the principle of the separation of powers, did not meet with any protest from the Minister of Justice, Dominique Perben, whereas the investigating judge had previously denied the request of his Djiboutian counterpart, taking the view that it would be an abuse of procedure in view of the possible involvement of Djiboutian officials. The new Minister of Justice has now undertaken not to hand over the case file against the will of the investigating judge. It is a shame that such mobilisation was necessary simply to get the Minister of Justice ... to observe the law.
This cynicism was taken a step further with the reception of the Djiboutian Head of State by Jacques Chirac on 17 May 2005. Whilst Ismaël Omar Guelleh had been summoned to appear as a witness by the judge investigating Judge Borrel’s murder, the Ministry of Foreign Affairs let it be known that he did not need to respond to the summons because of his immunity as Head of State. For his part, Jacques Chirac openly renewed his support for President Guelleh and called the courts to order, drawing attention in particular to the excessive length of the proceedings.
Borrel investigation: mission impossible?
Another cause for concern is the increase in criminal proceedings against journalists and the press for being ‘guilty’ of countering the official position that prevailed until June 2000 – that of suicide. In addition to the barrage of actions against Libération, Le Monde, Golias, Canal Plus and the Canard enchaîné, in 2005 there were two acts of censorship, this time by the administration of an emblematic radio station – with its international audience – RFI [Radio France Internationale].
Information on Franco-African affairs is not part of a ‘reserved domain’ of communication emanating from the Ministry of Foreign Affairs or the President. The French government must now refrain from any attempt to restrict the freedom of journalists to report on developments in the Borrel case.
Everything must now be done to allow the investigating judge to pursue his enquiries without having to fear government pressure. The French State itself must remove the various obstacles in the proceedings, in particular by handing over to the investigating judge all documents in the authorities’ possession that may have a bearing on this murder case.”
32. On 28 June 2006 Mrs Borrel’s lawyer announced that genetic fingerprints had been found on the judge’s shorts and that they might belong to the murderers. On 19 October 2006 the investigating judge in the case delivered two arrest warrants against two Djiboutian nationals suspected of being the perpetrators, in order to compare their DNA with the genetic fingerprints found on the judge’s clothing.
33. On 14 February 2007 the investigating judge summoned the President of Djibouti, Omar Guelleh, to appear as a witness, just before he was due to arrive in France for the Africa-France summit held in Cannes on 16 and 17 February 2007.
34. The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 (as amended) read as follows.
“The making of any factual allegation or imputation that damages the honour or reputation of the person or body to whom the fact in question is attributed shall constitute defamation (diffamation). The direct publication or reproduction of such an allegation or imputation shall be punishable, even where it is expressed in sceptical terms or made about a person or body that is not expressly named but is identifiable by the terms of the offending speeches, shouts, threats, written or printed matter, placards or posters.
The use of abusive or contemptuous language or invective not containing an allegation of any fact shall constitute an insult (injure).”
“Anyone who, by one of the means set out in section 23, makes a statement that is defamatory of a court, the army, navy or air force, a State institution or a public authority shall be liable on conviction to a fine of 45,000 euros.”
“Where defamation is committed by the same means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or holding public office, a juror or a witness on the basis of his witness statement, the offence shall be punishable by the same penalty.
...”
“The following persons shall be liable, as principals and in the following order, to penalties for serious crimes (crimes) or other major offences (délits) committed through the press:
(1) publication directors or publishers, whatever their profession or title and, in the circumstances defined in section 6(2), joint publication directors;
(2) in the absence of any of the foregoing, the actual offenders;
(3) in the absence of the authors, the printers;
(4) in the absence of the printers, the vendors, distributors and billstickers.
In the cases provided for in the second paragraph of section 6, the joint and several liability of the persons referred to in paragraphs 2, 3 and 4 of the present section shall be engaged as if there were no publication director, when, contrary to the provisions of the present Act, a joint publication director has not been appointed.”
35. The relevant provisions of the Code of Criminal Procedure read as follows.
“In matters within the jurisdiction of the Assize Court, the Criminal Court or the Police Court, the Criminal Division of the Court of Cassation may remove a case from any judicial authority responsible for pre-trial investigation or any trial court and transfer it to another judicial authority of the same order on grounds of a reasonable suspicion of bias.
An application for transfer may be made either by Principal State Counsel attached to the Court of Cassation or by the prosecutor of the court dealing with the case, or by the parties.
The application shall be served on all the parties concerned, who shall have ten days within which to file their observations in the Registry of the Court of Cassation.
The lodging of an application shall not have any suspensive effect unless the Court of Cassation orders otherwise.”
“An application for a judge’s withdrawal from a case may be based on any of the following grounds:
(1) where the judge or his/her spouse is a blood relative or relative by marriage of one of the parties or of a party’s spouse up to and including the degree of first cousin once removed;
The judge’s withdrawal may be sought even after divorce or the spouse’s death where the judge had been a relative by marriage of one of the parties, up to and including relatives of the [civil-law] second degree.
(2) where the judge or his/her spouse, or a person in respect of whom he/she acts as guardian (tuteur), auxiliary guardian (subrogé tuteur) or court-appointed administrator, or a company or association in whose management or supervision he/she takes part, has an interest in the dispute;
(3) where the judge or his/her spouse is a blood relative or relative by marriage, to the degree indicated above, of the guardian, supervisory guardian or court-appointed administrator of one of the parties or of an executive or non-executive director or manager of a company that is a party to the proceedings;
(4) where the judge or his/her spouse is in a situation of dependence vis-à-vis one of the parties;
(5) where the judge has dealt with the case as a judge, prosecutor, arbitrator or legal adviser, or where he/she has given evidence as a witness relating to the facts of the case;
(6) where there has been litigation between the judge, his/her spouse or their lineal blood relatives or relatives by marriage and one of the parties, his/her spouse or lineal blood relatives or relatives by marriage;
(7) where the judge or his/her spouse is litigating in a court of which one of the parties is a judge;
(8) where the judge or his/her spouse or their lineal blood relatives or relatives by marriage have a dispute over an issue similar to that existing between the parties;
(9) where there has been, between the judge or his/her spouse and one of the parties, any manifestation serious enough to cast doubt on his/her impartiality.”
36. On 10 July 2003, at the 848th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2003)13 to member States on the provision of information through the media in relation to criminal proceedings. The appendix to that Recommendation sets out eighteen guiding principles, of which the first reads as follows:
“The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal-justice system, subject only to the limitations provided for under the following principles.”
VIOLATED_ARTICLES: 10


ITEMID: 001-91497
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF EOSOLY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1958 and lives in Hévízgyörk.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. In 1996 the applicant brought an action in compensation against his former employer before the Pest County Labour Court. In March 2003 the Labour Court partly found for him. The applicant appealed. On 3 November 2004 the Pest County Regional Court upheld the first-instance decision. The courts relied on documentary evidence, the opinion of an auditor and testimonies of witnesses and the parties.
7. The applicant lodged a petition for review with the Supreme Court. On 9 February 2005 the Supreme Court dismissed the applicant’s petition. This decision was served on him on 25 April 2005.
VIOLATED_ARTICLES: 6


ITEMID: 001-93150
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: METZELE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Gerhard Metzele, is a German national who was born in 1946 and lives in Bielefeld.
On 27 February 1996 the applicant brought proceedings before the Munich I Regional Court for compensation against the Deutsche Bahn (German Railways) company and applied for legal aid. He submitted that on 18 November 1994 his right leg was pinned by the closing doors of a train carriage of that company. The applicant, who already suffered from reduced mobility, claimed to have sustained serious physical injuries and damage to his mental health thereby.
On 17 September 1996 the Regional Court held a hearing.
On 4 October 1996 the Regional Court dismissed the applicant’s request to be sent train tickets in order to be able to attend another hearing. That decision was quashed on appeal.
On 21 January 1997 the Regional Court heard three witnesses.
On the Regional Court’s request of 21 February 1997, a Hungarian court heard another witness on commission on 27 January 1998.
On 12 May 1998 the Munich I Regional Court, having held another hearing, ordered the defendant to pay the applicant by way of compensation for non-pecuniary damage 500 Deutschmarks (DEM), representing 10% of the damages claimed. The remainder of the claim was not allowed as the applicant had been contributorily negligent. The defendant was also ordered to reimburse costs the applicant had incurred for a medical certificate (DEM 15). The court further declared that the defendant was to compensate the applicant for ten per cent of the future loss he would incur as a result of the accident on 18 November 1994 and dismissed the remainder of the applicant’s action.
On 24 July 1998 the applicant lodged an appeal against the judgment of the Munich I Regional Court, for which he submitted detailed reasons on 23 October 1998.
He was subsequently granted legal aid for counsel different from his representation at first instance. Legal aid was later extended to cover a change of legal aid lawyer.
On 14 February 2002 and on 7 March 2002 the applicant extended his initial action. He claimed the payment of further compensation for non-pecuniary damage as he was now obliged to use a wheelchair and suffered from allergies and asthma as a result of the accident.
On 15 March 2002 the Court of Appeal, having held a hearing, requested forensic expert E. to submit a report by consulting also an expert for accident analysis (S.) and a psychiatric expert, on the question whether the applicant had suffered the damage he now claimed through the accident on 18 November 1994. It refused to grant the applicant legal aid in respect of his additional claims.
On 15 August 2002 experts E., S. and P. submitted their report giving advice on accident analysis and informed the court that they were not in a position to give a psychiatric expert opinion.
On 22 January 2003 the Munich Court of Appeal ruled the applicant’s motion for bias against expert E. inadmissible as it had been lodged out of time.
On 24 January 2003, when the Court of Appeal also held a hearing, and on 17 February 2003 a different bench of the Court of Appeal dismissed motions for bias lodged by the applicant on 23 and 29 January 2003 and 8 February 2003 as ill-founded.
On 21 February 2003 the Court of Appeal appointed a psychiatric expert.
On 23 June 2003 and on 1 December 2003 the Court of Appeal dismissed repeated requests by the applicant for legal aid to mandate a new lawyer.
On 9 February 2004 the Court of Appeal dismissed another motion for bias lodged by the applicant on 18 December 2003.
As the applicant had repeatedly failed to attend examinations the dates of which had been fixed with the court-appointed psychiatric expert until 31 March 2004, the Court of Appeal decided not to consult that expert.
On 9 July 2004 the Munich Court of Appeal, having held another hearing, partly quashing the judgment of the Munich Regional Court, held that the defendant was to pay the applicant DEM 500 in compensation for non-pecuniary damage and dismissed the remainder of the applicant’s action. Contrary to the Regional Court’s view, the Court of Appeal, having regard to the report submitted by experts E., S. and P., found that the applicant had not been physically injured by the accident. The applicant’s numerous confused submissions had led the court to consider whether the applicant was mentally capable of involvement in proceedings. However, as he had refused to present himself for a psychiatric examination, the court was not able to come to any conclusions on the point. The court found that the applicant had failed to prove that the accident had any long-term consequences for his mental health. The Court of Appeal itself dismissed further motions for bias dated 24 February 2004 and 14 March 2004 as inadmissible, as they merely referred to the applicant’s previous motions which had already been rejected.
The judgment was served on the applicant’s recently appointed counsel on 14 October 2004.
On 11 January 2005 the Federal Court of Justice rejected the request of the applicant, represented by counsel, to be granted legal aid in order to lodge a complaint against the refusal to grant him leave to appeal on points of law. It found that the applicant’s complaint did not have sufficient prospects of success. On 28 February 2005 the Federal Court of Justice dismissed the applicant’s objection of 8 February 2005 to its decision of 11 January 2005.
On 10 May 2005 the Federal Court of Justice dismissed a complaint by the applicant about the refusal to grant him leave to appeal against the judgment of the Munich Court of Appeal. It found that the complaint was inadmissible as the applicant had failed to submit reasons for it within the statutory time-limit.
On 2 May 2005 and on 8 June 2005 the applicant lodged a complaint about the judgments of the Regional Court and the Court of Appeal and the three decisions of the Federal Court of Justice with the Federal Constitutional Court. He submitted, inter alia, that the civil proceedings had been unreasonably long and had been unfair for several reasons. In particular, the Court of Appeal and the Federal Court of Justice had refused to grant him legal aid. The Court of Appeal had further based its decision on a report which a partial expert had not drawn up in due form. Moreover, only his lawyer had received the summons for hearings and copies of the judgments.
On 1 July 2005 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1301/05). It found, without giving further explanations, that the complaint was inadmissible.
The applicant received the decision on 10 July 2005.


ITEMID: 001-103426
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF PLESHKOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1960 and lives in Belgorod, Russia.
6. On 29 May 2003 a criminal case was opened against him, along with some other persons, on suspicion of trafficking in human beings, and on 31 May 2003 the applicant was arrested.
7. On 30 July 2003 the Kyivskyy District Court of Kharkiv (“the Kyivskyy Court”) released him subject to an undertaking not to abscond.
8. On 21 November 2003 the pre-trial investigation was declared complete and the case was sent to the trial court, which commenced the proceedings on 10 December 2003.
9. On 25 May 2004 the Kyivskyy Court, in a hearing in which the victims' representative took part, allowed the prosecutor's application for the applicant's (as well as the other co-defendant) remand in custody. The court agreed with the prosecutor's argument that the applicant had been putting pressure on the victims, which had led to changes in their testimonies. According to the applicant, his own argument, on which the court allegedly failed to comment, was that the changes in the victims' statements in the court might have been explained by the investigator's pressure on them in the course of the pre-trial investigation, which they were not any longer subjected to during the trial. The applicant was arrested in the hearing room.
10. He repeatedly and unsuccessfully requested to be released under an undertaking not to abscond. The applicant argued that there was no evidence of his guilt, that he had never faced any criminal charges before and had received some government awards. Furthermore, he referred to the facts that he had a permanent place of residence and elderly parents to take care of, and that his health had deteriorated in detention.
11. On 24 September 2004, 13 and 15 April, 31 May and 5 December 2005 the Kyivskyy Court rejected the applicant's requests for release. The reasoning of those rulings was practically identical. The court supported the prosecutor's opinion, which referred to the serious nature of the charges against the applicant and an inherent risk of his absconding. It further noted:
“The court considers that the issue of changing the preventive measure is premature. The issue of the preventive measure [“of the penalty” – in the rulings of 24 September 2004 and 5 December 2005] will be resolved when the verdict is pronounced in the case and [the applicant] is convicted or acquitted.”
12. The applicant unsuccessfully complained about the length of the trial to the Council of Judges of Ukraine, to the Kharkiv Court of Appeal and to various other authorities. He was informed in reply that it was caused by the complexity of the case and the large number of victims, as well as by the need to handle numerous requests and petitions from the applicant.
13. On 31 July 2006 the Kyivskyy Court found the applicant guilty of trafficking in human beings and production and distribution of pornographic materials, and sentenced him to ten years' imprisonment, with prohibition on working in any film, video or computer programme production and distribution area.
14. Overall, the Kyivskyy Court held over sixty hearings. It issued rulings requiring the presence of the victims and witnesses, enforceable by the police, on some ten occasions.
15. On 13 February 2007 the Kharkiv Court of Appeal quashed that verdict and remitted the case to the same first-instance court for fresh examination. The main point of criticism was the vagueness of the verdict, including, in particular, the charges against the co-defendants, the classification of the films in which the victims had appeared as pornographic, and the conclusions that the victims had been both deceived and coerced by the co-defendants. The appellate court made a general conclusion that the investigation of the case by the first-instance court had been unbalanced and incomplete. It released the co-defendants under an undertaking not to abscond.
16. On 13 March 2007 the Kharkiv Court of Appeal decided to examine the case itself as a court of first instance.
17. On 12 April 2007 it remitted the case to the Kharkiv Regional Prosecutor's Office for additional investigation.
18. On 10 July 2007 the Supreme Court quashed the ruling of 12 April 2007.
19. On 27 September 2007 the Kharkiv Court of Appeal started the examination of the case.
20. On 4 and 16 October 2007 the court adjourned hearings on account of the applicant's failure to attend.
21. On 24 October 2007 it ordered the applicant's remand in custody, examination of the case being stayed until his whereabouts had been established.
22. The case remains pending before the Kharkiv Court of Appeal.
23. In his submissions to the Court, the applicant admitted he had absconded and gave as the reason that he did not trust the Ukrainian judiciary.
24. The relevant legal provisions can be found in the Shalimov v. Ukraine judgment, no. 20808/02, §§ 40-41, 4 March 2010).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-58054
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF TSIRLIS AND KOULOUMPAS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-5;No violation of Art. 3;Not necessary to examine Art. 9;Not necessary to examine Art. 14+9;Not necessary to examine Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. The applicants were born in 1964 and live in Thiva, Beotia.
7. On 4 November 1987 Mr Tsirlis was appointed religious minister by the Central Congregation of the Christian Jehovah’s Witnesses of Greece. He was given authority, inter alia, to perform wedding ceremonies between persons of that faith and to notify such weddings to the competent registry offices. By letter of 20 November 1987 the Prefecture of Eastern Attica notified the registry offices of Eastern Attica of his appointment.
8. On 13 February 1990 the applicant lodged an application with the Recruitment Office of Eastern Attica ("the Recruitment Office") to be exempted from military service in accordance with section 6 of Law no. 1763/1988 ("the 1988 Law"), which grants such a right to all ministers of "known religions". On 28 February 1990 the Recruitment Office rejected the application on the ground that Jehovah’s Witnesses were not a "known religion". The applicant immediately lodged an appeal with the Director for Recruitment at the General Headquarters for National Defence ("the Director for Recruitment").
9. While that appeal was pending, the applicant was ordered by the Recruitment Office to report for duty at a military training centre in Rethymnon on 6 March 1990. The applicant presented himself at the Rethymnon centre, as ordered, but refused to join his unit, invoking his status as a minister of a "known religion". He also refused to wear a military uniform as ordered by a military officer. He was arrested, charged with insubordination (see paragraph 45 below) and detained pending trial.
10. On 22 March 1990 the Director for Recruitment rejected the applicant’s appeal against the Recruitment Office’s decision, on the ground that Jehovah’s Witnesses were not a "known religion".
11. On 30 April 1990 the Canea Permanent Army Tribunal (Diarkes Stratodikio), composed of two military judges and three ordinary military officers, examined the criminal charges against the applicant. Mr Tsirlis claimed that he was innocent on the ground that he was a minister of a "known religion" exempted from military service. At the end of the hearing the President of the tribunal put the following question to its members:
"Is [the applicant], who is a Jehovah’s Witness, guilty of having refused to obey, while serving in the military, an order given by his commanding officer to perform a certain duty, namely collecting articles of clothing necessary for his training as an unarmed soldier, on the ground that the religious convictions of Jehovah’s Witnesses did not permit him to do so?"
The tribunal unanimously answered the question in the affirmative, found the applicant guilty of insubordination and sentenced him to four years’ imprisonment, from which it deducted the period he had spent in detention pending trial.
12. On 4 May 1990 the applicant appealed against that decision to the Military Appeal Court (Anatheoritiko Dikastirio).
13. On 21 May 1990 the applicant brought proceedings in the Supreme Administrative Court (Symvoulio tis Epikratias) to have the Director for Recruitment’s decision of 22 March 1990 quashed. He asked, among other things, to be treated like other religious ministers.
14. On 19 June 1990 the applicant’s appeal came up for hearing before the Military Appeal Court, a court composed of five military judges. The defence sought the applicant’s acquittal or, alternatively, an adjournment of the hearing pending the Supreme Administrative Court’s decision on his administrative appeal. The defence also applied for the applicant’s provisional release. The military court decided to adjourn the hearing to a date to be fixed by the prosecutor (Epitropos), in order to enable the latter to produce a copy of the applicant’s original application for an exemption and of the Director for Recruitment’s final decision on it. It further ruled that the applicant should not be provisionally released.
15. On 12 September 1990 the applicant requested the Supreme Administrative Court to order a stay of execution of the Director for Recruitment’s decision refusing to exempt him from military service.
16. On 29 November 1990 the applicant’s appeal came up again for hearing before the Military Appeal Court. In the meantime the Fourth Division of the Supreme Administrative Court had delivered judgment no. 3601/90, in which the right of Jehovah’s Witnesses ministers of religion to be exempted from military service had been expressly upheld (see paragraph 44 below). The prosecutor requested an adjournment of the hearing with a view to obtaining the opinion of the Director for Recruitment on the following matter:
"Is the accused under an obligation to perform military service in the light of judgment no. 3601/90 of the Fourth Division of the Supreme Administrative Court, which quashed a decision of the Director for Recruitment at the General Headquarters for National Defence, who had rejected an application for exemption from military service lodged by another accused person who was a religious minister of the Central Congregation of the Christian Jehovah’s Witnesses ...?"
17. The prosecutor further submitted that the applicant should remain in custody. The defence agreed to the hearing being adjourned and considered that the question of the applicant’s provisional release "should be left to the court’s discretion". The court granted the prosecution’s application and ordered that the applicant should not be provisionally released.
18. On 16 April 1991 the applicant’s appeal came up for hearing for the third time before the Military Appeal Court. A hearing had been fixed on the same day in the action the applicant had brought in the Supreme Administrative Court to have the Director for Recruitment’s decision of 22 March 1990 quashed.
19. The prosecutor at the Military Appeal Court proposed adjourning the hearing of the applicant’s criminal appeal pending the Supreme Administrative Court’s decision. He also submitted that the applicant should remain in custody. The defence considered that the first matter should be left to the court’s discretion but made an application for the applicant’s provisional release.
20. The court decided to adjourn the hearing in order to obtain the opinion of the Director for Recruitment on the following question: "Was the accused exempted from the obligation to report for duty in the light of his purported status of religious minister?" It further ordered that the applicant should remain in custody.
21. On 24 April 1991 the Supreme Administrative Court quashed the Director for Recruitment’s decision of 22 March 1990 on the ground that Jehovah’s Witnesses were a "known religion" and the administrative authorities had not challenged the evidence produced by the applicant that he was a minister of that religion.
22. On 8 May 1991 a three-member committee of the Supreme Administrative Court decided that in the circumstances there was no need to rule on the applicant’s petition for a stay of execution of the Director for Recruitment’s decision.
23. On 30 May 1991 the Military Appeal Court considered the applicant’s appeal against the Canea Permanent Army Tribunal’s judgment of 30 April 1990. The issue before the court, as formulated by its President, was the following:
"Is [the applicant], a member of the religious sect of Jehovah’s Witnesses, guilty of having refused to obey, while serving in the military, an order given by his commanding officer to perform a certain duty, namely collecting articles of clothing necessary for his training as an unarmed soldier, on the ground that the religious convictions of Jehovah’s Witnesses did not permit him to do so?"
24. Having heard the evidence and the parties’ submissions on the question of the applicant’s guilt, the court withdrew for deliberations. After the deliberations the President announced the verdict. The applicant was acquitted, by three votes to two, on the ground that "there was no act" of insubordination. The dissenting judges considered that "the accused [was] not a religious minister". The following order was attached to the court’s verdict and read out together with it: "The State is under no obligation to compensate the applicant for his detention between 6 March 1990 and 30 May 1991, because his detention was due to his own gross negligence."
25. The applicant was immediately released and was provisionally discharged from the armed forces on the basis that he was a minister of religion.
26. On 4 November 1987 Mr Kouloumpas was appointed religious minister by the Central Congregation of the Christian Jehovah’s Witnesses of Greece. He was given authority, inter alia, to perform wedding ceremonies between persons of that faith and to notify such weddings to the competent registry offices. By letter of 20 November 1987 the Prefecture of Eastern Attica notified the registry offices of Eastern Attica of his appointment.
27. On 29 November 1989 the applicant lodged an application with the Patras Recruitment Office ("the Recruitment Office") to be exempted from military service in accordance with section 6 of the 1988 Law. On 1 March 1990 the Recruitment Office rejected the application on the ground that Jehovah’s Witnesses were not a "known religion". The applicant immediately lodged an appeal with the Director for Recruitment.
28. While that appeal was pending, the applicant was ordered by the Recruitment Office to report for duty at a military training centre in Sparta on 6 March 1990. The applicant presented himself at the Sparta centre, as ordered, but refused to join his unit, invoking his status as a minister of a "known religion". He also refused to wear a military uniform as ordered by a military officer. He was arrested, charged with insubordination (see paragraph 45 below) and detained pending trial.
29. On 6 April 1990 the Director for Recruitment rejected the applicant’s appeal against the Recruitment Office’s decision, on the ground that Jehovah’s Witnesses were not a "known religion".
30. On 21 May 1990 the applicant brought proceedings in the Supreme Administrative Court to have the Director for Recruitment’s decision of 6 April 1990 quashed. He asked, among other things, to be treated like other religious ministers.
31. On 30 May 1990 the Athens Permanent Army Tribunal, composed of one military judge and four ordinary military officers, examined the criminal charges against the applicant. Mr Kouloumpas claimed that he was innocent on the ground that he was a minister of a "known religion" exempted from military service. At the end of the hearing the President of the tribunal put the following question to its members:
"Is [the applicant], who is a Jehovah’s Witness, guilty of having refused to obey, while serving in the military, an order given by his commanding officer to perform a certain duty, namely collecting articles of clothing necessary for his training as an unarmed soldier, on the ground that the religious convictions of Jehovah’s Witnesses did not permit him to do so?"
The tribunal unanimously answered the question in the affirmative, found the applicant guilty of insubordination and sentenced him to four years’ imprisonment, from which it deducted the period he had spent in detention pending trial.
32. On 1 June 1990 the applicant appealed against that decision to the Military Appeal Court.
33. On 12 July 1990 the applicant’s appeal came up for hearing before the Military Appeal Court. The defence sought the applicant’s acquittal or, alternatively, an adjournment of the hearing pending the Supreme Administrative Court’s decision on his administrative appeal. The court decided to adjourn the hearing to a date to be fixed by the prosecutor, in order to enable the latter to produce copies of certain documents from the Ministry of Education and the Holy Synod of the Orthodox Church of Greece which had been relied on by the military authorities to refuse the applicant’s application for exemption. The court further accepted the submission of both the prosecution and the defence that the applicant should not be provisionally released.
34. On 12 September 1990 the applicant requested the Supreme Administrative Court to order a stay of execution of the Director for Recruitment’s decision refusing to exempt him from military service.
35. On 27 November 1990 the applicant’s appeal came up again for hearing before the Military Appeal Court. In the meantime the Fourth Division of the Supreme Administrative Court had delivered judgment no. 3601/90, in which the right of Jehovah’s Witnesses ministers of religion to be exempted from military service had been expressly upheld (see paragraph 44 below). The prosecutor requested an adjournment of the hearing with a view to obtaining the opinion of the Director for Recruitment on the following matter:
"Is the accused under an obligation to perform military service in the light of judgment no. 3601/90 of the Fourth Division of the Supreme Administrative Court, which quashed a decision of the Director for Recruitment at the General Headquarters for National Defence, who had rejected an application for exemption from military service lodged by another accused person who was a religious minister of the Central Congregation of the Christian Jehovah’s Witnesses ...?"
36. The prosecutor further submitted that the applicant should remain in custody. The defence requested the applicant’s provisional release. The court granted the prosecution’s application and ordered that the applicant should not be provisionally released.
37. On 7 March 1991 the applicant’s appeal came up for hearing for the third time before the Military Appeal Court. The prosecutor sought an adjournment of the hearing on the ground that the Director for Recruitment should give his opinion on the following matter: "Is the accused already exempted from the obligation to perform military service in view of the proceedings he has brought in the Supreme Administrative Court?" He also submitted that the applicant should remain in custody. Despite the applicant’s opposition, the court granted both applications.
38. On 24 April 1991 the Supreme Administrative Court quashed the Director for Recruitment’s decision refusing the applicant’s application for exemption on the ground that Jehovah’s Witnesses were a "known religion" and the administrative authorities had not challenged the evidence produced by the applicant that he was a minister of that religion.
39. On 8 May 1991 a three-member committee of the Supreme Administrative Court decided that in the circumstances there was no need to rule on the applicant’s petition for a stay of execution of the Director for Recruitment’s decision.
40. On 29 May 1991 the Military Appeal Court considered the applicant’s appeal against the Athens Permanent Army Tribunal’s judgment of 30 May 1990. The issue before the court, as formulated by its President, was the following:
"Is [the applicant], a member of the religious sect of Jehovah’s Witnesses, guilty of having refused to obey, while serving in the military, an order given by his commanding officer to perform a certain duty, that is to collects articles of clothing necessary for his training as an unarmed soldier, on the ground that the religious convictions of Jehovah’s Witnesses did not permit him to do so?"
41. Having heard the evidence and the parties’ submissions on the question of the applicant’s guilt, the court withdrew for deliberations. After the deliberations the President announced the verdict. The applicant was acquitted, by three votes to two, on the ground that "there was no act" of insubordination. The dissenting judges considered that "the accused [was] not a religious minister". The following order was attached to the tribunal’s verdict and read out together with it: "The State is under no obligation to compensate the applicant for his detention between 6 March 1990 and 29 May 1991, because his detention was due to his own gross negligence."
42. The applicant was immediately released and was provisionally discharged from the armed forces on the basis that he was a minister of religion.
43. Section 6 of Law no. 1763/1988 ("the 1988 Law") exempts all ministers of "known religions" from military service. In application of this provision, priests of the Greek Orthodox Church obtain exemption without any difficulty.
44. The Supreme Administrative Court has repeatedly held that Jehovah’s Witnesses are a "known religion" (judgments nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985 and 790 and 3533/1986). In its judgment no. 3601/1990 the Supreme Administrative Court expressly upheld the right of Jehovah’s Witnesses ministers of religion to be exempted from military service.
45. Article 70 of the Military Criminal Code provides as follows:
"A member of the armed forces who refuses ... to obey an order by his superior to perform one of his duties is punished..."
46. On 16 March 1992 the Athens Permanent Army Tribunal held that a Jehovah’s Witnesses minister of religion who had refused to collect military clothing when first called upon to join the army was not guilty of insubordination. The tribunal considered that there had been no act of insubordination, because the accused had no obligation to perform military service as he was a minister of a "known religion".
47. Article 434 provides that where a procedural matter is not regulated in the Military Criminal Code, the Code of Criminal Procedure applies.
48. The relevant provisions of the Code of Criminal Procedure read as follows:
"Persons who have been detained on remand and subsequently acquitted ... shall be entitled to request compensation ... if it has been established in the proceedings that they did not commit the criminal offence for which they were detained ..."
"The State shall have no obligation to compensate a person who ... has been detained on remand if, whether intentionally or by gross negligence, he was responsible for his own detention."
"1. Upon an oral application by a person who has been acquitted, the court which heard the case shall rule on the State’s obligation to pay compensation in a separate decision delivered at the same time as the verdict. However, the court may also make such a ruling proprio motu ...
2. The ruling on the State’s obligation to pay compensation cannot be challenged separately; it shall, however, be quashed if the decision on the principal issue of the criminal trial is reversed."
"1. A person who has suffered loss may seek compensation at a later stage from the same court.
2. In those circumstances the application must be submitted to the prosecutor [Epitropos] at that court no later than forty-eight hours after the delivery of the judgment in open court."
"Where it has been decided that the State must pay compensation, the person entitled thereto may bring his claim in the civil courts, which shall not call in question the existence of the State’s obligation."
"Persons who have been unfairly ... detained on remand must be compensated for any pecuniary loss they have suffered as a result of their ... detention. They must also be compensated for non-pecuniary loss ..."
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-109181
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ALBERTSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Thomas Albertsson, is a Swedish national who was born in 1966 and lives in Björklinge. He was represented before the Court by Mr Michael Niklasson, a lawyer practising in Uppsala. The Swedish Government (“the Government”) were represented by their Agent, Mr Carl Henrik Ehrenkrona, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In July 2003 a bank filed a bankruptcy petition before the Stockholm District Court (Stockholms tingsrätt) against the limited company Carina Ahlström Förvaltning AB (“the company”). At the time, all shares in the company were owned by the applicant. The court found that the company had no duly appointed representative and served the petition and summons to the bankruptcy hearing on the company’s registered auditor (registrerad revisor). At the hearing, held on 1 September 2003, the auditor appeared but no representative for the company. The District Court found that the mentioned documents had been legally served on the company through its auditor and that, therefore, there existed no impediment to proceeding with the hearing. In a decision later the same day, the District Court declared the company bankrupt and appointed an official receiver (konkursförvaltare) for the bankruptcy estate.
The company appealed against the decision to the Svea Court of Appeal (Svea hovrätt), requesting in the first place that the declaration of bankruptcy be quashed and the case be remitted back to the District Court for re-trial or, in the alternative, that the decision be reversed. It submitted, inter alia, that it was not insolvent and that the summons to appear before the District Court had not been correctly served. In the latter respect, it argued that it had been incorrect to serve the summons on the auditor since the company had a board of directors (styrelse) at the time and since the auditor had been dismissed from his mandate.
In a decision of 2 October 2003 the Court of Appeal found, inter alia, that no board of directors had been registered by the company with the register of limited companies (Aktiebolagsregistret). Similarly, the register had not shown that the auditor had been divested of his mandate. The Court of Appeal found that the summons to appear before the District Court had been correctly served on the company and that it had not substantiated that it was solvent. It therefore upheld the lower court’s decision in full.
In December 2003 the official receiver issued a formal report concerning the bankruptcy and the estate (förvaltarberättelse). According to the receiver, the company had been insolvent since at least February 2003. Moreover, it was noted in the report that most of the company’s assets had been transferred shortly before the bankruptcy decision without accounting for and, seemingly, without receiving any compensation in return, that the company had lacked annual reports and other complete bookkeeping, that there had been no ongoing activity in the company at the time of the bankruptcy decision and that, at the same point in time, the company had had 475,000 Swedish kronor (SEK) in assets and approximately SEK 2,600,000 in debts. During the bankruptcy period, the official receiver sold the bankruptcy estate’s assets and made prepayments to its creditors, including the creditor bank.
The company appealed against the Court of Appeal´s decision to the Supreme Court (Högsta domstolen) before which it maintained its claims. The Supreme Court granted leave to appeal and, in a decision of 18 March 2005 (NJA 2005 p. 175), found that it was not possible to serve a summons on a limited company without an appointed board of directors through its auditor. As, therefore, the summons to the bankruptcy hearing had not been correctly served on the company, the Supreme Court quashed the declaration of bankruptcy and remitted the case back to the District Court for re-trial.
Following the decision of the Supreme Court, the company transferred its possible right to damages from the State due to the erroneous bankruptcy decision to a third party.
On 9 January 2006 new bankruptcy proceedings, at which the company was represented, were held before the District Court. In these proceedings, the creditor bank referred to the mentioned prepayments from the bankruptcy estate and submitted that, out of its original claim, only SEK 14,000 remained unpaid. The company’s representative declared that he personally guaranteed the alleged remaining debt. On 13 January 2006 the court rejected the bankruptcy petition on the grounds, inter alia, that the present claim concerned only a small amount and that it had been guaranteed by the representative. The court further obliged the bank to reimburse the company’s legal costs and decided that its bankruptcy costs amounting to SEK 866,428 should be paid by the State.
The applicant sued the State before the Supreme Court, requesting the court to declare that the State was liable for damages incurred on the company by the District Court’s and the Court of Appeal’s erroneous declaration of bankruptcy. The applicant claimed that the State was obliged to pay compensation, firstly, in accordance with Chapter 3, section 2 of the Tort Liability Act (Skadeståndslagen, 1972:207), since the District Court and the Court of Appeal were guilty of wrongful acts or omissions in connection with the exercise of public authority. In the alternative, he requested that the Supreme Court should create a general legal principle (rättsgrundsats) giving a right to compensation in cases like the instant one. The applicant referred to, inter alia, the Convention and its protection of property rights.
The State disputed that there had been any wrongful acts or omissions in connection with the exercise of public authority which had given rise to an obligation for the State to pay compensation. It stated that the question of how to serve summonses on limited companies in cases such as the one at issue had been made clear only by the decision of the Supreme Court in 2005. There existed neither any previous case-law on the matter, nor any comments in the preparatory works that could be construed in a way that precluded the possibility of serving a summons on a limited company through its auditor. Finally, there was no guidance to be found in the doctrine. Therefore, the State argued, the decisions by the lower courts had not constituted a clear breach of the law, such as could be construed prior to the Supreme Court’s decision.
In a judgment of 22 March 2007, the Supreme Court rejected the applicant’s claims. It stated that now, after its decision in the case NJA 2005 p. 175, it was clear that a summons could not be served on a limited company through its auditor and that, consequently, the lower court’s decisions had been wrong. However, it observed that, when the State was held liable for alleged errors concerning legal and evidential issues, a flawed assessment by a court was not sufficient for liability for damages; only manifestly erroneous assessments could constitute grounds for liability. In this respect, the Supreme Court found that the correct interpretation of the relevant provision concerning the serving had not been obvious and that no such wrongful act or omission as to cause liability had been committed. The Supreme Court also rejected the applicant’s alternative request.
The company was declared bankrupt on its own request on 21 March 2007.
References in this section are made to the Bankruptcy Act (Konkurslagen, SFS 1987:672), unless otherwise indicated.
A debtor who is insolvent, that is who cannot pay his debts as they become due and whose inability in this regard is not merely temporary, shall be declared bankrupt at the request of the debtor himself or by a creditor (Chapter 1, section 2). By means of bankruptcy, all creditors collectively and compulsorily take the total assets of an insolvent debtor for payment of their claims. During bankruptcy, the bankruptcy estate takes care of the debtor’s assets on behalf of the creditors (Chapter 1, section 1).
The administration of a bankruptcy estate is managed by one or more official receivers appointed by the District Court (Chapter 1, section 3, and Chapter 7, section 2).
Bankruptcy decisions are immediately enforceable (Chapter 16, section 4). In the event of a higher court quashing the bankruptcy decision, all conducted administrative measures are to be interrupted forthwith and the case referred back to the District Court for concluding measures.
In the case where a higher court quashes the bankruptcy decision, the assets of the estate are restored to the debtor to the extent that they are not required for the defrayal of the bankruptcy costs and other costs that the estate has incurred (Chapter 2, section 25).
The latter provision implies that the estate is liable to pay the bankruptcy costs even if a declaration of bankruptcy is later quashed. However, by decision of the Supreme Court of 6 April 1998 (NJA 1998, p. 214), it was established that the State may be held liable to pay the bankruptcy costs when the declaration of bankruptcy is quashed due to a grave procedural error. The case concerned a bankruptcy decision that was quashed due to the District Court having summoned the debtor to its hearing in an incorrect manner.
It follows from Chapter 3, section 2, of the Tort Liability Act (Skadeståndslagen, SFS 1972:207) that the State is liable to pay compensation, inter alia, for financial loss caused by a wrongful act or omission in connection with the exercise of public authority.
The Supreme Court has in several judgments clarified that it is not sufficient for liability for damages that a court’s assessment of a legal issue is erroneous. Only manifestly erroneous assessments can be considered as wrongful acts or omissions within the meaning of the said provision (see, for example, NJA 1994 p. 654, 2003 p. 285 and NJA 2003 p. 527).