ITEMID: 001-79659
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TØNSBERGS BLAD AS AND HAUKOM v. NORWAY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 6. The first applicant, Tønsbergs Blad A/S, is the publisher of the newspaper Tønsbergs Blad. The second applicant, Mrs Marit Haukom, is its former editor-in-chief. She is a Norwegian national who was born in 1952 and lives in the city of Tønsberg in southern Norway.
7. Tønsbergs Blad is a regional newspaper covering primarily the city of Tønsberg and eight surrounding municipalities in the County of Vestfold. The newspaper is 100% owned by Orkla Media A/S. It is published six days a week. In 2002 it had a daily average circulation of 33,314, corresponding to a 60% household coverage within its primary circulation area.
8. In a meeting held on 21 September 1999 the Standing Committee on Development and Environmental Affairs (a politically appointed body attached to the Municipal Council) of the Tjøme Municipality asked the municipal administration to provide a survey of properties whose owners were suspected of breaching permanent residence requirements. Under section 5(3) of the Concession Act (Lov om konsesjon ved erverv av fast eiendom) of 31 May 1974 (no. 19), such requirements applied to the extent that it was deemed necessary to prevent private properties intended for permanent residential use from being transformed into holiday homes. Provisions to this effect were further contained in Regulation (forskrift) no. 2089 of 14 December 1984, issued under the above-mentioned Act in respect of the Tjøme Municipality, one of the few municipalities in Norway which applied permanent residence requirements for all-year residences. The purpose was to fend off pressures exerted on the local community by the exceptionally high demand for holiday homes in the Tjøme area, an attractive holiday destination for a large number of people residing notably in the Oslo region. There was also a concern that too many residences were unoccupied during off-season periods.
9. On 11 October 1999 the municipal administration drew up a list which was entitled “Properties which should be verified in relation to the residence requirements. (Not public)”. It was a tip-off list based on information from inhabitants and local politicians in the Municipality and was presented to the Standing Committee at a meeting open to the public held the following day. The list included the name of Mr Tom Vidar Rygh, who at the time was the Executive Vice-President, the Head of Financial Investments and a member of the Executive Board of Orkla ASA, one of Norway's largest industrial companies.
10. The property in question had been acquired in 1987 and Mr Rygh's wife held title to it (a fact that was not deemed significant in the defamation proceedings summarised below). An all-year residence had been erected on the property in 1988 and the Rygh family had used it as their main residence for 10 years until 1998, when they had moved to Oslo because of Mr Rygh's professional situation. Before that, they had been given legal advice that using the property solely for holiday purposes would not conflict with the residence requirements under the relevant national law.
11. Mr Terje Wilhelmsen, a journalist, became aware of the process initiated by the Tjøme Municipality and received a copy of the above-mentioned list. He had a close network of contacts within the Municipality. From autumn 1999 he made a number of enquiries to the Municipality on the subject. On 7 June 2000 the journalist interviewed the director of the Municipality's Planning and Building Department (leder for plan- og bygningssaker), Mr Dag Dreyer Sæter.
12. On 8 June 2000 the newspaper published as its main story an article written by Mr Wilhelmsen, which gave rise to the defamation proceedings brought against the applicants by Mr Rygh. On the front page there appeared an introduction to the article under the headline (all quotations below are translations from Norwegian):
“May be forced to sell”
and the sub-heading
“[H.K.] and Tom Vidar Rygh will have to explain themselves on permanent residence requirements”
The introduction read:
“Permanent residence requirements: In the worst-case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor [Fylkesmannen] in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements.
Taking action: The Tjøme Municipality will now take a firm line towards house owners within the Municipality who do not comply with the permanent residence requirements. For a long time there has been a zero limit on concessions at Tjøme. This means that all-year residences must be inhabited all year. Those who breach this requirement may be forced to rent out or to sell their property. This is confirmed by the director of the Planning and Building Department, Mr Dag Dreyer Sæter.”
The front page also contained photographs of Mrs H.K. (a famous singer) and of Mr Rygh.
13. The article continued inside the paper on page 3 with the following headlines:
“Tjøme hunts for permanent residence sinners
[H.K.] and Tom Vidar Rygh may be forced to sell”
and an introduction:
“TJØME: Both singer [H.K.] and Orkla director Tom Vidar Rygh may be forced to sell their properties in Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.”
14. At the top of page 3 the paper published photographs of Mrs Rygh's and Mrs H.K.'s respective properties. Under the former photograph, to the left, there was a caption:
“RESIDENCE REQUIREMENTS: Tom Vidar Rygh owns this property in Sandøsund at Hvasser. The Tjøme Municipality considers that the residence requirements are not satisfied.”
Between the two above-mentioned photographs there was a small photo of Mr Rygh with this caption:
“MUST PROVIDE AN EXPLANATION: - It must be due to a misunderstanding, says Tom Vidar Rygh”
15. The article stated:
“The Tjøme Municipality is now in the process of tightening up the obligation to comply with the residence requirement in the municipality. A zero concession limit has long since been introduced. This means that year-round properties must be lived in all year.
Confrontation
In the near future the technical services department of the Tjøme Municipality will approach the County Governor in order to report its suspicion that the residence requirement is not being fulfilled for a number of properties. It is then up to the County Governor to confront the owners of these properties.
The director of the Planning and Building Department, Mr Dag Dreyer Sæter, does not wish to comment to Tønsbergs Blad as to which properties are on the list they are sending to the County Governor. But from what Tønsbergs Blad has been given to understand, the property of Tom Vidar Rygh at Sandøsund on Hvasser island is on the list. The same applies to H.K.'s property, which is at Nes on Hvasser.
Clearing up
'I cannot comment on individual properties at the present time. First we must write to the County Governor. This will occur in the near future.'
'But will the Tjøme Municipality now tighten up the obligation to comply with the residence requirement?'
'Yes, indeed. This is an issue that has been discussed at both the administrative and the political levels for some time. Now we want to do something about it. We know that the residence requirements are not being complied with for several properties in the municipality. This is why we are now taking this initiative vis-à-vis the County Governor. Now we want to get this cleared up.'
Can be rented out
'What are the owners of these properties risking?'
'To begin with, they will have to explain themselves to the County Governor. I would emphasise that it is not a requirement that the owners themselves live in the properties. It is enough for them to be rented out on a year-round basis. If this is not done, there may be a question of enforced sale,' says the director of the Planning and Building Department Dag Dreyer Sæter to Tønsbergs Blad.
'Misunderstanding'
H.K. owns the property on Hvasser together with her husband ... He does not wish to comment on the matter to Tønsbergs Blad, in view of the fact that he has heard from neither the Municipality nor the County Governor.
Tom Vidar Rygh told Tønsbergs Blad that if his property on Hvasser was on the Municipality's list of properties where the residence requirements are not being fulfilled, this had to be due to a misunderstanding. Beyond that he did not wish to comment.”
16. Below, on the same page, Tønsbergs Blad published another article based on interviews with local politicians:
“Residence requirements are a two-edged sword
TJØME: May-Sylvi Hansen, who is the leader of the Conservatives on Tjøme Municipal Council, thinks that the time is ripe for a new and thorough political debate on the question of residence requirements.
Anne Vestad
'The whole question of residence requirements is a two-edged sword', she says.
The Tjøme Conservatives have the maintenance of the residence requirements in their manifesto, but at the same time the party feels a need to have a broad political debate on the question. May-Sylvi Hansen, who in addition to being the leader of the Conservatives on Tjøme Municipal Council also sits on the Planning and Environment Committee, tells Tønsbergs Blad that at any rate she sees no reason for a tightening-up of the obligation to fulfil the residence requirements now.
'The residence requirements issue is under discussion in the Tjøme Conservative Party, and the question is whether we should perhaps be a little more liberal in the time to come. But this is a two-edged sword. On the one hand we don't want to see year-round residences made into summer homes, but on the other hand we have had considerable migration to Tjøme in recent years – the population is growing fast,' says May-Sylvi Hansen.
Not a problem any more
'In the seventies and eighties the residence requirements were entirely necessary in this municipality. But in my opinion, after the big migration to the municipality began, empty houses in the winter are no longer a problem. We should therefore undertake a serious review of the whole issue of residence requirements and ask whether, when all's said and done, it's just an old bogeyman,' says Hansen.
Arne Fjellberg of 'The Tjøme List' independents, who chairs the Planning and Environment Committee, does not agree with May-Sylvi Hansen that the occupation provisions should be liberalised.
'Must tighten up'
'I fully support the director of the Planning and Building Department's view that it is necessary to tighten up the obligation that the residence requirements be fulfilled. With the mobility and flexibility that many now have in relation to their work, it shouldn't be a problem to live in Tjøme even if you work somewhere else. We want people to live in the houses of Tjøme, make no mistake about that,' says Fjellberg.
'So you don't support May-Sylvi Hansen in her view that it is time for a general rethink of the residence requirements?'
'The Tjøme List wants to retain the residence requirements, but I'm willing to be a part of a discussion of the residence requirement in general. It could surely be useful,' says Arne Fjellberg.”
17. On 9 June 2000 Aftenposten, one of Norway's largest daily newspapers, published a brief item on the matter, stating, inter alia, that an Orkla director and a famous singer might be forced to sell their properties, without specifying their names.
18. On 12 June 2000 Mr Rygh addressed a letter to the Tjøme Municipality. Its Chief Executive Officer (Rådmannen), Mr Gunnar A. Hansø, replied by a letter of 22 June 2000, which stated inter alia:
“The Tjøme Municipality is working on a survey of the status of the permanent residence requirements which have been implemented at Tjøme under section 5(3) of the Concession Act. Part of the reason why this work has started now are the enquiries from a number of local residents. These are neighbours to properties which are used, or should be used, for permanent residence but which, according to these enquiries, are not being used for this purpose. The list of properties that must be 'checked out' has now become quite extensive. A number of the enquiries result from the lack of knowledge about the contents of the regulations and the circumstances pertaining to the relevant users. Consequently, these properties are being checked out, which is an ongoing process. ...
Your wife's property has been reviewed in the same way, and I can confirm that the property, on legal grounds, has now been removed from the list.”
19. On contacting the Tjøme Municipality on 29 June 2000, the journalist Mr Wilhelmsen was informed that the Chief Executive Officer had replied to Mr Rygh and that Mrs Rygh's property had been removed from the list. Mr Wilhelmsen received a copy of the above-mentioned letter of 22 June 2000.
20. On 30 June 2000 Tønsbergs Blad published an article entitled
“No restrictions on new cottages
Tjøme Chief Executive Officer points to major loopholes in the Concession Act”
with the following introduction:
“Escape: Singer [H.K.] and Orkla director Tom Vidar Rygh escape the permanent residence requirements in the Tjøme Municipality. They were included on the Municipality's list of properties that were subject to residence requirements, but have now been taken off. The reason is that they have built on their land themselves. Thus, the residence requirements do not apply.
Major loopholes: Chief Executive Officer Gunnar Hansø (picture) at Tjøme asserts that the Concession Act is filled with holes the size of a barn door. He warns that the Municipality will take up the issue with the Ministry of Agriculture. By exploiting loopholes in the Concession Act, it is easy to get hold of an entirely new holiday home at Tjøme. All you need to do is to acquire a plot and build an all-year residence on it. Then no one can require permanent residence.”
21. The article continued on page 5, with the following headlines and introduction:
“Residence requirements do not apply to new houses
[H.K.] and Tom Vidar Rygh do not have to move to Hvasser.”
“TJØME: Singer [H.K.] and Orkla director Tom Vidar Rygh do not have to take up permanent residence in the Tjøme Municipality. The reason: they have built on their properties themselves. Thus the Concession Act does not apply. This means that they do not have to reside here.”
22. In addition the coverage contained photographs of Mr Rygh and Mrs. H.K., with captions stating that they had “escaped” the residence requirements with regard to their properties. There were also photographs of the properties, with captions stating “No residence requirement” and adding that the properties, which had previously been on the Municipality's list of properties not complying with the residence requirements, had now been taken off the list.
23. The article reproduced an interview with the Municipality's Chief Executive Officer, Mr Hansø, who was reported to have said that he had absolutely no wish to comment on individual cases, but confirmed that some had been cleared and removed from the list: “We did this for legal reasons.” He had further stated, inter alia, that it was unfortunate that the Concession Act, which had loopholes the size of a barn door, did not apply to the purchase of undeveloped sites, but only to properties with buildings on. In practice, that meant that anyone building a year-round residence in the Tjøme Municipality did not have to live in the house at all and could not be forced to move in. They could use it as a summer holiday cabin if they wished. It was not until the residence had been used for a period as a year-round home that the residence requirement would apply, but then only in the event of resale of the property. It could not be fair that residence requirements applied to some properties but not to others. To change this he would raise the matter with the Ministry of Agriculture.
24. On 5 July 2000 Tønsbergs Blad published an article containing, inter alia, an interview with a former Minister of Agriculture, who stated that the loopholes in the Concession Act that had been detected in Tønsbergs Blad's articles were “completely unreasonable” and should be amended.
25. On 5 and 6 July 2000 Mr Rygh conveyed to the newspaper orally and in writing his dissatisfaction with its 8 June 2000 coverage, including the fact that his name had been mentioned. The newspaper responded, orally and in writing. By a letter of 18 July 2000, Mr Rygh's lawyer demanded that Tønsbergs Blad publish a rectification and an apology. The newspaper replied that it had acted in accordance with the ethics of journalism and that, immediately after becoming aware that Mr Rygh's property had been removed from the list, it had accordingly published an article on the front page and had offered him space for his own viewpoints, an offer it had maintained for a period thereafter. An interview with Mr Rygh had not been published, as the newspaper had respected his decision that this was not desirable.
26. In a further article published on 8 August 2000, entitled “Tønsbergs Blad clarifies”, the paper stated that the properties belonging to Mrs H.K. and Mrs Rygh had been removed from the list in question, that the requirements at issue did not apply to their properties and that, accordingly, there had been no breach of the permanent residence requirements with regard to these properties.
27. On 15 September 2000 Mr Rygh instituted private criminal proceedings (privat straffesak) before the Tønsberg City Court (byrett). He requested that both the introduction on the front page and the article on page 3 be declared null and void under Article 253 of the Penal Code, that Tønsbergs Blad and its editor-in-chief (at the time of publication Mrs Marit Haukom) be punished under Articles 247 and 431 respectively of the Penal Code and that the newspaper and its editor-in-chief be ordered to pay compensation for non-pecuniary damage under section 3-6 of the Damage Compensation Act 1969.
28. By a judgment of 13 September 2001 the City Court acquitted the applicants and ordered Mr Rygh to pay 183,387 Norwegian kroner (NOK) in respect of their costs. It found that a defamatory allegation had been made but, with reference to Article 10 of the Convention, attached special importance to the public interest of the permanent residence issue and to the freedom of the press in respect of presentation and form.
29. On 26 September 2001 Mr Rygh appealed against the judgment to the Agder High Court (lagmannsrett).
30. By a judgment of 21 May 2002 the High Court upheld Mr Rygh's claims in part.
31. As to the first issue, whether the impugned statements amounted to defamation for the purposes of Article 247 of the Penal Code, the High Court observed that it agreed with the City Court that, when considering the 8 June 2000 article in isolation and as a whole, the allegations in question must be understood to mean that the Municipality, after having made a specific assessment of the relevant properties, had taken the stance that a breach of the residence requirements had occurred with regard to Mr Rygh's property, among others, and that his name had therefore been entered on a list which the Municipality had decided to transmit to the County Governor for further processing. The report should therefore be perceived by the ordinary reader as an allegation that Mr Rygh had breached the obligation of residence.
32. As to the question whether this amounted to a defamatory accusation, the High Court held that a breach of the residence requirements did not constitute a criminal offence but that, in a place like Tjøme, many people would regard it as being immoral and an affront to the public interest. The High Court agreed with the City Court that the accusations were not of the most defamatory kind but, not least in view of the strong personal angle of the report, the High Court found that it was capable of damaging Mr Rygh's good name and reputation. An examination of whether it was capable of causing a loss of the reputation required for the exercise of his profession was not necessary.
33. The High Court did not find that the applicants had adduced sufficient proof of the defamatory accusation under Article 249 § 1 of the Penal Code to avoid liability for defamation under Article 247. In this connection it observed:
“It is correct that Tom Vidar Rygh's name was mentioned on a list drawn up in October 1999 by the administration of the Tjøme Municipality for its Standing Committee on Development and Environmental Affairs. The heading of the list reads: 'Properties which should be verified in relation to the residence requirements'. Further, it was noted that the list was not public. Had the Tønsbergs Blad limited itself to stating this, it would have made an accusation that was true. ... Mr Rygh's name was put on the preliminary 'tip-off' list, based on tip-offs from inhabitants, local politicians and others. The High Court has no doubt that a number of local inhabitants could have believed that the residence requirements were breached in so far as Rygh's property was concerned, given the fact that it concerned an all-year residence which had been vacated and used as a holiday home. The mayor of the municipality has explained that he was of the opinion that the permanent residence requirements were breached, as has Mr Sæter, the director of the Planning and Building Department. However, Mr Sæter explained in the proceedings before the High Court that, at that time, he had not conducted a further investigation of the property. His view that the property was subject to the permanent residence requirements had been based on his belief that it had been converted from an older residence. He was fully aware that permanent residence requirements did not apply where a person had acquired an open plot of land and then built a house on it. Mr Sæter also explained that, when he had told the journalist Mr Wilhelmsen that a list would shortly be submitted to the County Governor, he was aware that the list would have to be examined first. According to the High Court's understanding of Mr Sæter, there had been no further elaboration of the preliminary tip-off list since autumn 1999. ... Since Mr Sæter was well aware of the exception to the residence requirements for new buildings on open plots of land, he would have quickly discovered that no obligation of residence applied here. ... The High Court further notes that to date none of the names that were on the provisional tip-off list from the autumn of 1999 have been transmitted to the County Governor because the Municipality believed that there was a breach of the residence requirements.
The allegations made by Tønsbergs Blad on 8 June 2000 were therefore demonstrably inaccurate.”
34. The High Court was divided as to the question whether the accusations were unlawful (rettstridige). A majority of four members found that that was the case, whereas a minority of three members agreed with the City Court.
35. However, a qualified majority of minimum five votes was required for finding liability under Article 247 of the Penal Code. Mr Rygh's claim that he had been the victim of unlawful defamation under Articles 247 and 431 by the newspaper and its editor-in-chief, respectively, was therefore rejected.
36. On the other hand, under Article 253 of the Penal Code, which required only a simple majority, the High Court declared the following two statements, published respectively on the front page and on page 3 of the 8 June 2000 issue (see paragraphs 12 and 13 above), null and void:
“Permanent residence requirements: In the worst–case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements.”
“...Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.”
The High Court further decided that the applicants were jointly and severally liable, under section 3-6 of the Damage Compensation Act 1969, to pay Mr Rygh NOK 50,000 in compensation for non-pecuniary damage. The High Court in addition decided that no costs should be awarded with respect to the proceedings either before the City Court or the High Court.
37. The applicants appealed to the Supreme Court against the procedure followed by the High Court (saksbehandlingen), namely the fact that the issue of nullification had been determined by a simple majority, and against its application of the law (rettsanvendelesen). On 4 September 2002 the Appeals Leave Committee of the Supreme Court granted leave to appeal in so far as the latter ground was concerned but refused such leave with respect to the former ground.
38. By a decision of 1 July 2003 the Supreme Court dismissed the applicants' appeal and ordered them to pay Mr Rygh NOK 673,879 for his legal costs. When deciding on the question whether to declare parts of the newspaper article null and void, the Supreme Court applied Article 2 § 3 of the Code of Criminal Procedure. This limited the scope of the Supreme Court's review of the facts of the case (see further on this below). As far as the question of non-pecuniary damage was concerned, the appeal only referred to the application of the law. Therefore, even though the Code of Civil Procedure was to be applied in this regard, in accordance with Article 435 of the Code of Criminal Procedure, the Supreme Court had to base its examination on the same facts as the High Court in this connection too.
39. In his opinion, to which three other members subscribed, Mr Justice Støle held, inter alia:
“(33) I shall first look at how the statements must be understood. It follows from case-law that the interpretation is part of the application of the law .... It is the statements whose nullification is requested which are to be interpreted. The question is how these must be assumed to have been understood by the readers of the newspaper. Taking the wording as our point of departure, we must then look at what perceptions the statements create in the ordinary newspaper reader. In my opinion there is no conflict between the case-law of the European Court of Human Rights and that of the Supreme Court as regards the subject matter of the interpretation; see the references to 'the ordinary reader' in the decisions of the European Court of Human Rights.
(34) The statements to be interpreted are included in the newspaper's first story of 8 June 2000. In the usual way the statements must be interpreted in context with the rest of the news report, with its typography and use of pictures. Like the High Court, however, I find it clear that the subsequent articles, carried on 30 June and 8 August 2000, are not of significance for this purpose. I shall return to the significance of the follow-up reportage in another context. Here it is sufficient to show that these are not suitable for shedding light on the meaning of the statements whose nullification is being requested. ... The statements in the story of 30 June 2000 are more of the nature of a description of a subsequent development, namely that Mr Rygh has been 'cleared' in the case. I would add – not that my standpoint depends on it – that the distance in time to the article to which the nullification claim applies is also materially greater than in Norsk Retstidende ('Rt') 2002-764.
(35) The unanimous High Court has summarised its interpretation as follows:
'When one accordingly considers the article of 8 June 2000 in isolation, the High Court agrees with the City Court that the statements, seen in isolation and as a whole, must be perceived by the ordinary reader as saying that the Municipality, after considering the relevant properties, has taken the position that there has been a breach of the residence requirements for, inter alia, A's property, and that his name has therefore been written down on a list that the Municipality has decided to refer to the County Governor for further action. The story must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached the residence requirements.'
(36) This by and large coincides with my own view. The core of the accusation was that Mr Rygh found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons whom the Municipality considered to have breached the residence requirements. I do not, however, concur with the majority of the High Court that the story 'must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached his residence requirements'. It is clearly apparent from the article that it is the Municipality's opinion that is being reported, and that the list is to be sent to the County Governor for decision.
(37) I agree with the High Court that the statements, as interpreted, contain a defamatory accusation; see Article 247 of the Penal Code. It is the first alternative in that provision that is relevant, and the allegation that the Municipality considered that the residence requirements had been breached was liable to damage his 'good name and reputation'. An accusation of a breach of the law of this nature must be regarded as defamatory. It is the public's moral judgment of the act that is decisive, and it is not a requirement that actual damage be demonstrated or substantiated. The High Court found that no evidence of the truth of the accusation was presented, and this conclusion is binding on the Supreme Court.
...
(40) In the specific weighing of factors in our case, the point of departure must be that Tønsbergs Blad has published a defamatory accusation about factual matters, namely that the Municipality had considered Mr Rygh's property under the rules on residence requirements and was of the opinion that Mr Rygh had breached the residence requirements. In this connection I do not accord any independent weight to the fact that he was not the holder of title to the property. The Supreme Court must find that the accusation was untrue – that applies both to the Municipality's alleged perception that the residence requirements had been breached, and the allegation that Mr Rygh's name was entered on a list that the Municipality, on the basis of such a perception, had prepared of owners of properties in respect of which the residence requirements were supposed to have been breached. As regards the facts, a unanimous High Court has found that this was a provisional 'tip-off list' based on tips from inhabitants and local politicians in the Municipality. It had been drawn up by the municipal administration in October 1999, and bore the title 'Properties which should be verified in relation to the residence requirements. (Not public)'. The High Court also noted that the Municipality, at the time the newspaper published the article on 8 June 2000, had not 'undertaken any further processing of the provisional tip-off list from the autumn of 1999'. The Supreme Court is bound by this assessment of the evidence.
(41) The main rule in both Norwegian defamation law and Article 10 of the European Convention on Human Rights is that non-proven defamatory allegations of fact are not protected by freedom of expression. As regards the European Court's case-law, I refer to the judgment of 20 May 1999 in Bladet Tromsø and Stensaas v. Norway (no 21980/93), § 66, and to the judgment of 7 May 2002 in McVicar v. United Kingdom (no. 46311/99), §§ 84 and 87; there must be special grounds for departing from this main rule.
(42) There is also a distinction between transmission of other people's untrue accusations and the media's own presentation of non-proven defamatory allegations. Freedom of expression stretches further to cover transmission, depending, inter alia, on who has made the allegation that is transmitted. If it is a report from a public authority, as in the Bladet Tromsø case, freedom of expression enjoys stronger protection.
(43) In our case it cannot be found that the newspaper has transmitted a defamatory accusation that was made by others. The article gives no source for the accusation, and the Supreme Court cannot depart from the High Court's (the majority's) assessment of evidence with regard to the newspaper's having based itself on an anonymous source in relation to the information that Mr Rygh was on the list that was to be sent to the County Governor and that his property was 'thus to be looked into with regard to a breach of the residence requirements'. The reliance on anonymous sources otherwise prevents the courts from testing whether the journalist displayed due care by employing that source; see Rt 1987-764, p. 771, and the European Court of Human Rights' judgment in McVicar, § 86. Referring to anonymous sources should therefore in this connection be equated with accusations made by the newspaper without giving sources. I will return later to the question of what grounds the newspaper had at the time of publication for the truth of the accusation.
(44) The decision in Rt-2002-764 and the case-law of the European Court of Human Rights shows that the specific weighing of factors must take into consideration several criteria. Of these I would emphasise the degree of public interest, the nature of the accusation, including whether the accusation is classified as a 'value judgment' or a 'factual statement', whether it is directed against a public person or a private individual, and the degree of care, including the extent to which the media at the time of publication had factual support for considering the allegation to be true. In general, the protection of the expression will be stronger if it concerns matters of public interest, value judgments, imparting of information, a public person, and if there are strong reasons for holding the allegation to be true. Contrariwise: if the case concerns limited public interest, factual statements, the media's own presentation, private persons and weak grounds for holding the allegation to be true, the protection of the expression will be weaker.
(45) That the expression containing the accusation is of public interest is in my view a fundamental criterion for regarding the media's own presentation of untrue defamatory allegations against private individuals about factual matters as being protected by freedom of expression.
(46) It is immediately clear that the question of enforcement of the residence requirements for year-round residences in a coastal municipality like Tjøme is of public interest. For Tønsbergs Blad as the local newspaper in the region, this was naturally a topic for critical coverage. The fact that there existed a list of properties that there was a question of referring to the County Governor must also be regarded as being of interest for the residents of the region and the newspaper's readership. Which properties or owners were on the list, on the other hand, must in my opinion be regarded as of limited public interest. If any of the individuals who were entered on the 'tip-off list' – for example owing to their function, position of trust or participation in the public debate – had had a special connection to the issue of residence requirements, it might have been different. It may well be the case that the modern news industry makes considerable use of known persons to arouse the interest of the readers. But I agree with the High Court that the fact that Mr Rygh was a relatively famous person as the executive VP of Orkla does not mean that he can automatically be regarded as a public person in relation to the rules on residence requirements. The majority's emphasis on his not having involved himself in the public debate on this topic appears very consonant with the European Court of Human Rights' reasoning in its judgment of 25 November 1999 in Nilsen and Johnsen v. Norway (no. 23118/93), § 52, first sub-paragraph, with its emphasis on Bratholm's 'participation in public debate' as the central theme.
(47) I would then return to the question of the journalist's due care in the publication, and view this in the context of the use of an anonymous source and of what factual grounds he had at the time of publication for considering the allegation true. I would first remark that there did not exist any written documentation from the municipality's processing of the matter that could support the allegation, over and above what the unanimous High Court has characterised as 'the provisional tip-off list'. As mentioned, the Supreme Court must in my opinion base its decision on what the High Court has found with regard to the use of an anonymous source. I cannot therefore see that it can be found that the newspaper had other sources or other grounds for its allegation that Mr Rygh's name was on a list that the Municipality should 'in the near future refer to the County Governor'. This was the basis for the accusation that the Municipality considered that Mr Rygh had breached the residence requirements. Even if use of anonymous sources is a recognised tool of modern journalism, such use of sources will imply a stricter requirement of due care. Moreover, in such a situation, it must to a considerable degree be the newspaper's risk that the factual information conveyed may turn out to be untrue.
(48) It is true that the same day the newspaper carried an interview with the director of the Municipality's Planning and Building Department, in which it was confirmed that the Municipality would in the near future be sending a list to the County Governor. But in my opinion the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed. In this connection I would not lay any particular emphasis on the fact that representatives of the Municipality may – before consideration of the tip-off list – have considered that the residence requirement applied to the Rygh family's property. Nor did the journalist claim to have based his story on information from these people. Otherwise, in my view, there are generally grounds for emphasising the big difference between being on a so-called tip-off list that has not been considered by the Municipality and being on a list that the Municipality has decided, after processing and consideration, to refer to the County Governor, who is the central government's supervisory and administrative authority.
(49) When Mr Rygh was contacted by the journalist immediately prior to the newspaper's running the story on 8 June 2000, his reaction was that the whole thing had to rest on a misunderstanding. Even if it is understandable that the newspaper may have wanted a broader statement from Mr Rygh, I cannot see that he can be blamed for his behaviour here. Without it having any importance for my view on the question I am discussing here, I would like to mention that it was subsequently discovered that Mr Rygh had obtained legal advice on the residence requirements in connection with his family's move to Oslo in 1998 in consequence of his work situation in Orkla. As the situation must have appeared to him, when he was contacted by the journalist immediately before the newspaper ran the story on 8 June 2000, his reaction was in my opinion understandable. The circumstance that I have mentioned here cannot in any event mean that the journalist may be regarded as having acted with due care.
(50) The articles that Tønsbergs Blad carried on 30 June and 8 August 2000 are of negligible significance for the questions I have now discussed. The stories came a relatively long time after the initial article. And under Article 253 § 2 of the Penal Code, claims for nullification must be rejected when the person making the accusation 'withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person'. Tønsbergs Blad has not, however, requested the case to be dismissed from the courts, and I have no occasion to enter into any discussion of this question. I would, however, remark that Norwegian defamation law is based on the notion that a withdrawal of an allegation has significance in relation to the sanctions, and not the assessment of unlawfulness (rettstridsvurderingen).
(51) As the case now stands, I cannot agree with Tønsbergs Blad that the newspaper's follow-up report means that there is on the whole a balanced presentation suggesting that the statements in the story of 8 June 2000 cannot be deemed unlawful. The story of 30 June 2000 was in particular angled in such a way as to make it less appropriate as a modification of the original statement's defamatory character; see the use of the expression that Mr Rygh 'is escaping' the residence requirements. In the discussion of 8 August 2000, under the headline 'Tønsbergs Blad clarifies', there is a more neutral correction, but it is not stated here either that Mr Rygh has not been on any list that has been considered by the Municipality.
(52) By way of conclusion I see good reason to emphasise: as will be apparent from what I have reproduced from the first voting judge in Rt. 2002-764, in considering specific statements the press's role as a central practitioner of freedom of expression must be weighed against the interests of privacy, including the reputation of the individual. When the expression concerns a case of public interest, the role of the press as a 'public watchdog' means that interference with freedom of expression requires a weighty justification. In our case it is the protection of Mr Rygh's reputation that calls for the interference. The only way I can see the situation is that Tønsbergs Blad could have highlighted the residence requirements issue critically, as it did in the reportage of 8 June 2000, without the strong focus on Mr Rygh personally – a focus that rested on a deficient factual basis.
(53) In the light of this I have concluded that the statements of which nullification is requested are not protected by Article 10 of the Convention and that the request must be granted. Since the special arguments regarding the compensation claim for non-pecuniary damage have not been maintained, it follows that this part of the judgment is also upheld.”
40. The dissenting judge, Mr Justice Rieber-Mohn, stated:
“(56) ... I concur that in its news coverage of 8 June 2000 Tønsbergs Blad published a defamatory statement – an accusation of a factual character – for which there was no factual basis. I also agree with the first voting judge that the core of the accusation is that Mr Rygh found himself on a list that the Tjøme Municipality had drawn up, which contained the names of individuals whom the Municipality considered to have breached the residence requirements. This would, however – assuming it was correct – not have been a final declaration that there had been a breach of the residence requirements. For this reason, among others, I agree with the minority of the High Court and the City Court that the accusation lies in the lower stratum of what can be covered by Article 247 of the Penal Code. I also have the impression that the High Court's majority by and large agree with this.
(57) When an untrue defamatory statement is made, the point of departure is also clear under the European Court of Human Rights' case-law concerning Article 10 of the European Convention: the accusation is not protected by freedom of expression. But exceptions to this may be contemplated. If the accusation is to enjoy protection under freedom of expression, it must at the least be demanded that the news coverage in which it is contained is of public interest and additionally that the necessary care was taken by the newspaper. I consider that these criteria were met in this case.
(58) There can be no doubt that the general subject with which the newspaper was concerned, and with which the news coverage of 8 June 2000 really dealt, namely compliance with the rules on residence requirements, was and is of great public interest. The question is whether it is in the public interest to publicise a possible breach of the residence requirements on the part of Mr Rygh. I would first mention that in modern journalism it is a common and recognised method of popular education to illustrate general and usually difficult questions by means of the roles and fates of individuals, when they are considered especially relevant. When individuals are unwillingly brought forward, and are subjected to accusations of crime and so forth, a mass medium must have good reasons for this, for example if the person concerned has sought out the light of publicity in this area, or is a prominent person in society who must accept that special demands are made of his integrity and sense of responsibility to society. At the time in question Mr Rygh belonged to the top management of one of the country's biggest industrial conglomerates, and his name was not unfamiliar in the news. In my opinion individuals who have sought prominent positions in society, which require a special degree of trust from the public, must to some extent accept that the media will follow them with the eyes of Argus, not just in their professional activities but also when, in the more private sphere, they challenge laws and other regulations that are particularly meant to safeguard the interests of society. It is therefore possible to conceive of violations of the law by these individuals that in the circumstances will be of public interest, even if the breach carries no criminal responsibility or the penalties are minor. In this case the newspaper thought that Mr Rygh had broken the rules on residence requirements, which in public opinion was and is of major social importance, even if such a contravention is not a criminal offence. I have difficulty seeing that it was not a matter of public interest if such a very prominent person as Mr Rygh had not complied with the residence requirements with regard to his property in the Tjøme Municipality.
(59) The question then becomes whether the newspaper has acted with the requisite care. It must be noted that the journalist used an anonymous source when he wrote that Mr Rygh was on the Municipality's list of those who were considered to have breached the residence requirements. It is undisputed that for a long while Tønsbergs Blad had been working on this topic, and that the journalist – who lived at Tjøme – had been in contact with several representatives of the Municipality. It must also be noted that the journalist, on application to the Municipality, received confirmation that there existed a list that the Municipality had drawn up, but the mistake was that this was a list of individuals who, according to external tip-offs, had breached the obligation, and not a list of individuals whom the Municipality had already found to have breached it. The newspaper thus confused the tip-off list, which contained Mr Rygh's name, with the list that the Municipality was indeed to refer to the County Governor for a decision on whether the residence requirements had been complied with.
(60) I cannot see that the newspaper is much to be blamed for this confusion. The journalist had reason to believe that a municipal assessment had been carried out at that point. In the story of 8 June 2000 the director of the Planning and Building Department confirmed that technical services would 'in the very near future' write to the County Governor regarding individuals whom the Municipality suspected of breaching the residence requirements. The director also stated: 'We know that the residence requirements are not being complied with for several properties in the Municipality'. And the director did not wish to say 'which properties are on the list we are referring to the County Governor'. This last statement gave the clear impression that the list which the Municipality had assessed already existed. In addition, prominent representatives of the Tjøme Municipality – such as the mayor and the director of the Planning and Building Department – subsequently stated that, at the time when the newspaper had carried the controversial reportage, they had been of the opinion that Mr Rygh was in breach of the residence requirements. This is clearly apparent from the High Court's judgment, both the minority and majority remarks. Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000. I would also mention that, according to the story, the newspaper had approached Mr Rygh for his view of the matter, but he did not want to comment beyond stating that the fact that his name was on the list must have been due to a misunderstanding.”
41. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions in Articles 246 and 247 of the Penal Code, an order under Article 253 of the Code declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 to pay compensation to the aggrieved party. Only the latter two were at issue in the present case.
42. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court. In so far as relevant this provision reads:
“1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.”
43. Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof.
44. Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy.
45. Section 3-6 of the Damage Compensation 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...”
46. Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Article 247 of which provides:
“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” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
47. Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads:
“1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced.
...”
VIOLATED_ARTICLES: 10


ITEMID: 001-58104
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF RADIO ABC v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 7. Radio ABC is a non-profit-making association whose registered address is in Vienna. On 28 August 1989 it applied to the Post and Telecommunications Regional Head Office (Post- und Telegraphendirektion) for Vienna, Lower Austria and Burgenland for a licence to set up and operate a radio station and for allocation of a frequency on which it could broadcast programmes to the Vienna region.
8. On 9 January 1990 the Regional Head Office refused the above application. Relying on the Constitutional Law guaranteeing the independence of broadcasting (“the Constitutional Broadcasting Law”, see paragraph 16 below), which provided that activities of this type had to be authorised by federal legislation, it noted that such legislation had been enacted only in respect of the Austrian Broadcasting Corporation (Österreichischer Rundfunk, “the ORF”). Consequently, only the latter could operate in the field concerned.
9. On 25 September 1990 the Post and Telecommunications National Head Office (Generaldirektion für die Post- und Telegraphenverwaltung) dismissed an appeal by the applicant. It observed in particular that in its judgment of 16 December 1983 the Constitutional Court (Verfassungsgerichtshof) had held that the ORF’s monopoly was compatible with Article 10 of the Convention (see paragraph 18 below).
10. Radio ABC then applied to the Constitutional Court, arguing in particular that the National Head Office’s decision was in breach of Article 10 of the Convention. It accepted that Article 10 permitted Contracting States to require the licensing of broadcasting enterprises, but submitted that since no such procedure had been laid down in Austrian law everyone had the right to broadcast freely.
11. On 30 September 1991 the Constitutional Court refused to consider the application, holding that, regard being had to its judgment of 16 December 1983, this did not have sufficient prospects of success.
12. After the entry into force, on 1 January 1994, of the Regional Broadcasting Law (see paragraph 19 below), the applicant association lodged two applications on 17 April 1994 in each of which it asked to be allocated one of the two frequencies reserved for private broadcasters in the Vienna region. On 25 January 1995 the Regional Broadcasting Authority (Regionalradiobehörde) gave two separate decisions refusing these applications on the ground that, regard being had to the requirements of section 20 (2) of the Regional Broadcasting Law, Radio ABC’s programmes were too specialised for it to be able to give them priority over those of other applicants. Radio ABC then appealed against these decisions to the Constitutional Court.
13. As several other appeals of the same type had been lodged with it, the Constitutional Court began proceedings of its own motion, on 3 May 1995, to review the constitutionality of section 2 (1) to (3) and (5) of the Regional Broadcasting Law (see paragraph 19 below). On 27 September 1995 it annulled, with immediate effect, these provisions and the frequency allocation plan based on them (see paragraph 20 below), thereby invalidating the decisions concerning the appellants taken by the Regional Broadcasting Authority. The Constitutional Court held that the annulled provisions contravened the principle of legality (Legalitätsprinzip), since the conditions for their application were not indicated with sufficient precision. As a result, it continued, there was no longer any legal basis on which operating licences could be granted to radio stations, so that a situation incompatible with the Convention had been brought into being.
14. According to the Telecommunications Law (Fernmeldegesetz) of 13 July 1949, “the right to set up and operate telecommunications installations (Fernmeldeanlagen) is vested exclusively in the federal authorities (Bund)” (section 2 (1)). The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations (section 3 (1)). No licence is required in certain circumstances, including the setting up of an installation within the confines of a private property (section 5).
15. The Ministerial Ordinance of 18 September 1961 concerning private telecommunications installations (Verordnung des Bundesministeriums für Verkehr und Elektrizitätswirtschaft über Privatfernmeldeanlagen) lays down, inter alia, the conditions for setting up and operating private telecommunications installations subject to federal supervision. According to the case-law, it cannot however constitute the legal basis for the grant of licences.
16. According to section 1 of the Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks),
“...
2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall be a public service.”
17. The Law of 10 July 1974 on the Austrian Broadcasting Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks) established the Austrian Broadcasting Corporation with the status of an autonomous public-law corporation.
It is under a duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (section 2 (1) (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (section 3). Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations (section 5 (1)).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all disputes concerning the application of the above-mentioned law which fall outside the jurisdiction of an administrative authority or court (sections 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the federal government.
18. In a judgment of 16 December 1983 the Constitutional Court held that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph 1 in fine and paragraph 2 of Article 10 of the Convention (Gesetzesvorbehalt). The Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence by the federal legislature. This system was intended to ensure objectivity and diversity of opinions (Meinungsvielfalt), and would be ineffective if it were possible for everybody to obtain the requisite authorisation. As matters stood, the right to broadcast was restricted to the ORF, as no implementing legislation had been enacted in addition to the law governing that organisation (see the Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, pp. 8–9, § 10).
19. The Regional Broadcasting Law of 9 July 1993 (Regionalradiogesetz), which came into force on 1 January 1994, governs the licensing of local and regional radio stations. Before the judgment of 27 September 1995 (see paragraph 13 above) section 2 provided:
“1. In agreement with the General Purposes Committee of the National Assembly (Hauptausschuß des Nationalrates), the Federal Minister for Economic Affairs and Transport shall, by means of an ordinance (the frequency allocation plan – Frequenznutzungsplan), allocate terrestrial sound radio broadcasting capacities (drahtlose terrestrische Übertragungskapazitäten für Hörfunk), defined in terms of frequency and broadcasting location, to the Austrian Broadcasting Corporation and radio stations (Programmveranstalter).
2. In making the above allocation, the Federal Minister for Economic Affairs and Transport shall ensure:
(1) that there is no impediment to performance by the Austrian Broadcasting Corporation of the tasks imposed on it by law in the field of sound radio broadcasts;
(2) that radio stations are able to reach the widest possible audience within any one Land; and
(3) that attention is paid to the needs of local sound radio.
3. In the above-mentioned frequency allocation plan the Federal Minister for Economic Affairs and Transport shall, after consulting the Länder concerned and in agreement with the General Purposes Committee of the National Assembly, assign in accordance with paragraph 2, sub-paragraphs 2 and 3, each of the frequencies and broadcasting locations available for use by radio stations to an individual licence to broadcast within the Länder. In so doing he shall have particular regard to local topography, population density, technical parameters and Austria’s international obligations in the field of telecommunications.
…
5. In urgent individual cases the telecommunications authorities (Fernmeldebehörde) may take decisions at variance with the frequency allocation plan, provided that within six months the plan is modified accordingly in conformity with paragraph 3.”
Section 4 requires the programmes of private radio stations to respect the principles of objectivity and diversity of opinion and to reflect the public, cultural and economic life of the region in which they are broadcast. Section 13 instituted regional broadcasting authorities (Regional-radiobehörde). Under section 20 (2), where a number of private broadcasters satisfying the statutory conditions apply for a licence, the regional broadcasting authority must give priority to the one which comes closest to achieving the objectives laid down in the Law, for example by reflecting a greater diversity of opinion.
20. On 27 September 1995 the Constitutional Court declared paragraphs 1 to 3 and 5 of section 2 null and void; accordingly, the frequency allocation plan based on them was likewise void.
21. On 1 May 1997 the amendments replacing the annulled provisions came into force.
VIOLATED_ARTICLES: 10


ITEMID: 001-73254
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PAVLOVIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1962 and lives in Prebold.
6. On 19 June 1995 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 4 November 1996 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 5,447,223 tolars (approximately 22,700 euros) for the injuries sustained.
On 6 December 1996 the presiding judge was appointed to the Higher Court (Višje sodišče v Celju) and the case was assigned to a new judge.
Between 11 September 1997 and 15 September 1998 the applicant made three requests that a date be set for a hearing.
On 8 June 1998 and 4 March 1999 he lodged preliminary written submissions and/or adduced evidence.
Of the three hearings held between 8 June 1998 and 12 April 1999 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 June 1999.
8. On 21 June 1999 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 5 April 2000 the court allowed in part the applicant’s appeal and remanded the case back to the first-instance court for re-examination.
The judgment was served on the applicant on 12 July 2000.
9. On 19 July 2000 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and requested that one of the judges be recused. ZT cross-appealed.
On 12 January 2001 the request for recusal was rejected.
On 14 June 2001 the court allowed in part the ZT’s appeal, rejected the applicant’s appeal and upheld the second-instance court’s decision of remitting the case for re-examination before the first-instance court.
The judgment was served on the applicant on 29 August 2001.
10. On 5 November 2001 the presiding first-instance court judge was appointed to the Celje Higher Court and the case was assigned to a new judge for re-examination.
Between 24 September 2001 and 18 November 2002 the applicant lodged three preliminary written submissions and adduced evidence.
On 25 October 2001 he made a request that a date be set for a hearing.
The court held hearings on 27 May and 18 November 2002.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding in part the applicant’s claim, was served on the applicant on 12 March 2003.
11. On 25 March 2003 the applicant appealed to the Celje Higher Court.
On 21 October 2004 the court allowed in part the appeal.
The judgment was served on the applicant on 13 January 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90786
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ŞERİFE YİĞİT v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1954 and lives in Gaziantep.
6. The applicant was the partner of Ömer Koç (Ö.K.), with whom she entered into a religious marriage (imam nikah) in 1976 and had six children. Ö.K. died on 10 September 2002.
7. On 11 September 2003 the applicant brought an action before the İslahiye District Court, in her own name and that of her daughter Emine, seeking to have her marriage to Ö.K. recognised and to have Emine entered in the civil register as the deceased’s daughter.
8. In a judgment of 26 September 2003 the İslahiye District Court dismissed the applicant’s action regarding the marriage but granted the request for Emine to be entered in the register as Ö.K.’s daughter. No appeal was lodged and the judgment became final.
9. On an unspecified date the applicant requested the Hatay retirement pension fund (Bağ Kur) to grant her and her daughter Emine the benefit of her deceased partner’s retirement pension and health insurance rights. On an unspecified date the fund refused the request. On 20 February 2003 the applicant applied to the İslahiye Labour Court to have that decision set aside. On 20 May 2003 the latter decided that it had no jurisdiction ratione loci and that the case should be heard by the Hatay Labour Court.
10. In a judgment of 21 January 2004 the Hatay Labour Court rejected the applicant’s application in part. Basing its decision on the judgment of the İslahiye District Court, it found that the applicant’s marriage to Ö.K. had not been validated. Accordingly, since the marriage had not been legally recognised, the applicant could not be subrogated to the deceased’s rights. However, the court set aside the fund’s decision in so far as it related to Emine, granting her the benefit of her deceased father’s pension and health insurance rights.
11. On 10 February 2004 the applicant appealed on points of law to the Court of Cassation. She pointed out that the extract from the civil register stated that she was the wife of Ö.K., who was registered in the village of Kerküt. The applicant explained that in 1976 she had married Ö.K. in accordance with custom and practice. The couple had had six children, born in 1977, 1980, 1981, 1982, 1985 and 1990. The first five children had been entered in the civil register in 1985 under their father’s name, while the last child, Emine, born in 1990, had been entered under her mother’s name in 2002. The applicant said that on 10 September 2002, while preparations had been under way for an official marriage ceremony, her partner had died following an illness. She asserted that, unlike the couple’s six children, she did not benefit from her late partner’s pension or health insurance rights.
12. In a judgment of 3 June 2004, served on the applicant on 28 June 2004, the Court of Cassation upheld the impugned judgment.
13. Article 143 of the Civil Code provides:
“At the close of the marriage ceremony the official shall issue the couple with a family record book.
The religious ceremony may not be performed unless the family record book is produced.
The validity of the marriage is not linked to the celebration of the religious ceremony.”
14. The sixth paragraph of Article 230 of the new Criminal Code provides:
“Any person who celebrates a religious marriage without having seen the document certifying that a marriage ceremony has been performed in accordance with the law shall be liable to a term of imprisonment of two to six months.”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-86652
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KALINIC AND BILBIJA v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicants, Mr Dragan Kalinić and Mr Milorad Bilbija, are citizens of Bosnia and Herzegovina. They were represented before the Court by Mr M. Pucar, a lawyer practising in Banja Luka.
s, may be summarised as follows.
On 29 June 2004 the High Representative removed Mr Kalinić from his positions as Speaker of the Parliament of the Republika Srpska and as president of a political party (Srpska demokratska stranka; “SDS”). Mr Kalinić was also barred, until further notice, from holding any public or political-party positions and from running for election. The decision had immediate effect and did not require any further procedural steps. The main reasons given for the decision are reproduced here:
“1. Despite its constitutionally mandated duty to fully co-operate with ICTY [that is, the International Criminal Tribunal for the Former Yugoslavia] – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war without a single war criminal being arrested in the territory of the Republika Srpska by the authorities of the Republika Srpska, is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole.
For over a decade and throughout the war, SDS has held the reins of political power in the Republika Srpska. The Entity’s failure to apprehend those indicted individuals in flagrant disregard of Bosnia and Herzegovina’s obligations under international law is, therefore, a damning indictment of SDS’s commitment to proper governance. Given its dubious legacy as the political party founded by and initially presided over by the chief ICTY indictee at large, Radovan Karadžić, it was doubly incumbent upon SDS to effect expiation and rehabilitation by proactively pursuing and bringing to book the erstwhile architects of its odious policies which so disfigured the polity. That it has not done so is a testament, at best, to its negligent abdication of governmental responsibility or, at worst, to its concerted will to obstruct peace implementation by clinging to vestiges (and figures) of its bankrupt past.
As the leading member of the SDS occupying the highest position of responsibility within the party and upon solid information and belief, Mr. Kalinić is culpable for the SDS’s failure to purge the political landscape of conditions conducive to the sustenance to individuals indicted under Article 19 [of the Statute of the ICTY], as aforesaid.
2. Persons holding office as President of a political party are placed in a position of trust and confidence not only vis-à-vis the members of that particular party but also vis-à-vis the taxpayers insofar as political parties are funded, inter alia, from the budgets of the various level of Governments in Bosnia and Herzegovina. As such, they are under an obligation to ensure that the financing of the parties is fully transparent and orderly and to take such step as are necessary to ensure that the party observes and adheres to both domestic law and international obligations and that funds from the Party, whether private or public, are neither used for the sustenance of criminals or indicted war criminals or their support structures nor to help those evade capture.
The Report of the Special Auditor for the Republika Srpska shows substantial discrepancies between the Financial Report of 19 April 2004 and the financial records of SDS offices across the Republika Srpska. In particular, the Report of the Special Auditor highlights the lack of property lists, poor invoices supporting payments, incomplete payments of required social benefit and employment tax costs for SDS employees, unreported cash income, poorly documented and frequent withdrawals from petty cash, all of which constitute breaches of the Law.
More importantly, the Report shows a total failure of the central bodies of the SDS to assume their supervisory duties under the Statute of the Party and to guarantee that the minimum necessary measures are in place for ensuring the effective and proper management and control of the party and its assets. The result of such failures of control amount to a delinquency of duty to ensure that these funds are secure from being used to sustain or assist indicted war criminals, and especially Radovan Karadžić, the founder of the SDS, who, inter alia, has admitted in a letter that he is in contact with and has received assistance from SDS, a fact which is also supported by certain other evidence.
For reasons mentioned above, Dragan Kalinić had a special responsibility to sever the links of the party with the past by ensuring that no material assistance could be or was provided to such an individual. The findings of said Report compel the conclusion that, in the absence of control mechanisms, the SDS and its President are not in sufficient control of the funds of the Party to preclude party bodies from providing any assistance or succour to its former President.
On these grounds, the peace implementation is undermined as long as Mr Kalinić remains in office. Accordingly, he must be removed from office forthwith.”
On 16 December 2004 the High Representative removed Mr Bilbija from his position in the Intelligence and Security Agency of Bosnia and Herzegovina and from all his other public and political-party positions. Mr Bilbija was also barred, until further notice, from holding any such positions and from running for election. The decision had immediate effect and did not require any further procedural steps. The following are the main reasons given for the decision:
“Bosnia and Herzegovina has singularly failed to discharge its international obligation to bring closure to arguably the most lamentable chapter of its history. It has failed especially and egregiously in the territory of the Republika Srpska to apprehend and deliver to just prosecution a number of persons indicted under Article 19 of the Statute of the ICTY.
Said failure could not have occurred without the active assistance of individuals and entities, or indeed without the general culture of both overt and secret complicity and of silence prevalent in the one Entity of Bosnia and Herzegovina where such individuals are believed to have found sanctuary, that is, [in the] Republika Srpska.
Despite its constitutionally mandated duty to fully co-operate with the ICTY – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within the Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole.
It now falls on the international community to redress this intolerable situation by initiating direct and sweeping action against those public-office holders of the Republika Srpska who obstruct international law in the Entity. By dint of their nefarious conduct or failure to carry out their functional responsibilities while associated in differing capacities with public institutions, these individuals have demonstrated that they are not worthy of entrustment with public responsibility.
Based on the foregoing and upon solid information and belief, it is deemed necessary to remove from public office Milorad Bilbija. Milorad Bilbija holds the office of Deputy Head Operative Administration of the Intelligence and Security Agency in Banja Luka. Milorad Biblija is, whether through his actions or his failures to act an integral part of the common scheme within the Republika Srpska to foster a culture of silence and deceit wherein war crime indictees are protected from justice.
As a constituent of the current political culture within the Republika Srpska, Milorad Bilbija is derivatively culpable for contributing to the failure to purge from the political landscape of conditions conducive to the provision of material support and sustenance to individuals indicted under Article 19 [of the Statute of the ICTY], as aforesaid. Such failings are inimical to stability and the rule of law. Milorad Bilbija, therefore, obstructs the process of peace implementation and must be removed from public office. The principles of proper governance and transparency, protection of the integrity and reputation of the institutions of Bosnia and Herzegovina, and active support for the rule of law and for the international obligations of Bosnia and Herzegovina – so essential to the peace implementation process – mandate this outcome.”
Following appeals of the applicants, on 28 February 2005 and on 18 May 2005 the Court of Bosnia and Herzegovina and the Supreme Court of the Republika Srpska, respectively, decided that they lacked jurisdiction to examine the High Representative’s decisions mentioned above.
The applicants then appealed to the Constitutional Court of Bosnia and Herzegovina. On 8 July 2006 the Constitutional Court found that the domestic authorities had failed to secure an effective domestic remedy against the decisions of the High Representative in the applicants’ cases, as required by Article 13 of the European Convention on Human Rights and the equivalent provision of the Constitution of Bosnia and Herzegovina. The domestic authorities were ordered to secure such a remedy. This decision (no. AP 953/05) was published in the Official Gazette of Bosnia and Herzegovina no. 20/07 of 20 March 2007. It led to a vigorous response from the High Representative: on 23 March 2007 he issued a decision removing any practical effect from the Constitutional Court’s decision of 8 July 2006. The relevant part of the High Representative’s decision reads as follows:
In order to implement the Decision of the [Constitutional] Court [no. AP 953/05 of 8 July 2006], the Presidency of Bosnia and Herzegovina shall address to the High Representative, as Chair of the Steering Board of the [Peace Implementation Council], all matters raised in said Decision that ought to be considered by the international authorities referenced in the said Decision.
Any step taken by any institution or authority in Bosnia and Herzegovina in order to establish any domestic mechanism to review the Decisions of the High Representative issued pursuant to his international mandate shall be considered by the High Representative as an attempt to undermine the implementation of the civilian aspects of the [Peace Agreement] and shall be treated in itself as conduct undermining such implementation.
Notwithstanding any contrary provision in any legislation in Bosnia and Herzegovina, any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent.
Any proceeding referred to in Paragraph 1 of this Article shall be effectively and formally notified to the High Representative by the concerned court without delay.
For the avoidance of any doubt or ambiguity, and taking into account the totality of the matters aforesaid, it is hereby specifically ordered and determined, in the exercise of the said international mandate of the High Representative and pursuant to its interpretation hereinunder and by virtue of the said Annex 10 [to the Peace Agreement], that no liability is capable of being incurred on the part of the Institutions of Bosnia and Herzegovina, and/or any of its subdivisions and/or any other authority in Bosnia and Herzegovina, in respect of any loss or damage allegedly flowing, either directly or indirectly, from such Decision of the High Representative made pursuant to his or her international mandate, or at all.
For the avoidance of doubt, it is hereby specifically declared and provided that the provisions of the Order contained herein are, as to each and every one of them, laid down by the High Representative pursuant to his international mandate and are not, therefore, justiciable by the Courts of Bosnia and Herzegovina or its Entities or elsewhere, and no proceedings may be brought in respect of duties in respect thereof before any court whatsoever at any time hereafter.
This Order shall enter into force immediately and shall be published without delay...”
The relevant law and practice were outlined in Berić and Others v. Bosnia and Herzegovina ((dec.), nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, ECHR 2007...).