Violation of Art. 6-1;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On 5 July 1991, at the Crown Court at Isleworth, Middlesex, the applicants and another man, Jean-Pierre Terrasson, were convicted of illegally importing 18 kilograms of cocaine (with a street value of GBP 23 million) into Heathrow Airport, London, on 3 November 1990.

The applicants and Mr Terrasson had been under surveillance by officers of Her Majesty’s Customs and Excise for some five weeks prior to their arrest on 3 November 1990. On 29 September the three men were observed travelling to Copenhagen Airport. They did not leave the airport and almost immediately after arriving they checked in their luggage and returned to Heathrow. The second applicant (henceforth, “Thierry”) and Mr Terrasson travelled to Brazil on 30 September, and the first applicant (“Armand”) went to Los Angeles on 1 October. The two applicants returned to London on 30 October, when Armand was observed arriving at Heathrow carrying a black suitcase. On 2 November 1990 he met Thierry (who had been in France) and Mr Terrasson (coming from Brazil) at Heathrow.

On 3 November 1990 a man named Willi Smolny flew from Brazil to London via Copenhagen. He had with him a black suitcase containing 18 kilograms of cocaine.

That morning, the applicants went to Mr Terrasson’s London hotel. Thierry was seen carrying a black suitcase similar to Mr Smolny’s. Shortly thereafter he and Mr Terrasson left the hotel by taxi for Heathrow, carrying the black and a grey suitcase. At the airport they boarded a flight for Copenhagen, checking in the black suitcase in Mr Terrasson’s name and the grey suitcase in Thierry’s name. Immediately on their arrival in Copenhagen they checked themselves on to a return flight to Heathrow. Mr Smolny was also on this flight, although there was no evidence of contact between Mr Smolny, Thierry and Mr Terrasson.

When the aeroplane reached Heathrow, customs officers intercepted the luggage. They found that the two black suitcases were indeed very similar. Mr Smolny’s suitcase was to contain 18 kilograms of cocaine. It was almost twice as heavy as the suitcase checked in by Mr Terrasson, which had a number of identifying tags attached to it.

The officers put the two suitcases back with the other luggage from the flight which passed for collection on to the carousel. One of the officers saw Thierry take Mr Smolny’s suitcase from the carousel and put it onto Mr Terrasson’s trolley. Mr Terrasson took this suitcase through the green, “nothing to declare”, channel at customs. Thierry also collected the grey suitcase, which he took through the green channel. The other black suitcase, which had been checked on to the flight by Mr Terrasson, was not collected from the carousel.

Mr Terrasson and Thierry were arrested by customs officers. Armand, who had not been on the flight or at the airport, was arrested later that day at the home of a relative in South London. All three men were interviewed and denied any knowledge of or participation in the offence. Armand said that he was an emerald and diamond dealer in England for a short time on his way to Antwerp. He claimed not to know Mr Terrasson and stated that he did not know anything about his son’s trip to Copenhagen. Thierry said that he had previously travelled to Copenhagen in connection with the purchase of some jewels, but said that he had made the most recent trip to see a girlfriend. He also denied knowing Mr Terrasson, until customs officers told him that Mr Terrasson’s credit cards had been found in the grey suitcase. Thierry then conceded that he had had a brief encounter with Mr Terrasson in Copenhagen. Mr Terrasson denied knowing either of the applicants or Mr Smolny. He said that he had travelled alone to Copenhagen, taking with him a black suitcase, to meet a married woman friend. He was unable to meet her because her husband was home, so he returned immediately to London. He claimed to have taken his own, not Mr Smolny’s, black suitcase from the carousel. Mr Smolny was arrested later in Zurich. He said in interview that he had been instructed by a man called Mr Morgan to bring the black suitcase, which he believed to contain antiques, from Sao Paolo to Heathrow and to leave it on the luggage carousel.

In January 1991 “old-style” committal proceedings (requiring the prosecution witnesses to give oral evidence) were held at the Uxbridge Magistrates Court. Under cross-examination by the defence counsel, the customs case-officer claimed that the only relevant evidence held by the prosecution which had not been disclosed to the defence was two tapes of interviews with the applicants’ South London relatives, two or three interpreters’ statements and some material taken from the house where Armand had been arrested.

At the trial, which started in May 1991, the prosecution case was that Armand had organised the importation, using Mr Smolny as the courier from Brazil to Copenhagen and London, and that he had instructed Mr Terrasson, with Thierry as “minder”, to collect Mr Smolny’s suitcase at Heathrow as if in mistake for his own. There was no forensic, photographic or video evidence to substantiate the prosecution case, which relied to a large extent on the accounts given by customs officers of what they had observed.

All four defendants pleaded not guilty and gave evidence. The applicants maintained that Armand worked principally as a jewel trader, but that he did not keep written records because he systematically avoided paying taxes and duties in Brazil. The illegality of his jewel trading had motivated their lies during their initial interviews with customs officers. The applicants’ defence centred around a dispute between Armand and a rival jewel trader based in Brazil called Rudi Steiner. They stated that Armand had paid Mr Steiner USD 200,000 in advance for diamonds, which Mr Steiner had failed to deliver to the applicants as agreed in Copenhagen on three occasions: 28 August, 29 September and 3 November 1990. On this last occasion, since, as before, Mr Steiner did not appear, Thierry and Mr Terrasson, who had gone together to collect the diamonds, returned immediately to Heathrow, where Thierry removed Mr Terrasson’s, not Mr Smolny’s, suitcase from the carousel. The applicants contended that Mr Steiner was an informer for Customs and Excise. They claimed that, in order to avoid repaying his debt and for fear that the applicants would discredit him amongst other Brazilian traders following the non-delivery of the diamonds, he had arranged falsely to implicate them in the importation of cocaine. However, they had no evidence to connect Mr Steiner to Mr Molny’s suitcase full of drugs or to substantiate the suggestion that he was a Customs and Excise informer.

Under cross-examination the customs officers involved in the case refused either to confirm or deny whether or not they had used an informer. No evidence relating to an informer or to Rudi Steiner was served on the defence or put before the judge.

In his summing up the judge summarised the defence by saying, inter alia:

“...Steiner had long since either directly or through the Brazilian authorities informed British Customs and Excise that Armand Atlan and Thierry Atlan and Mr Terrasson were preparing to smuggle cocaine to England, and in that way had induced the Customs and Excise here to mount a prolonged and labour-intensive observation of those three men. On the Saturday, 3rd of November, Steiner sprang his trap. He got Morgan to send Smolny off with the suitcase ... with the drugs in it, believing it, of course, to be antiques and works of art. He got Armand Atlan to believe that it was worthwhile going for the third time to Copenhagen for a delivery of the diamonds and he notified Customs of the itinerary of the various people which was to be foreseen from these arrangements, and that is how the incident you have heard about on the afternoon of that day and indeed the observations of that day, came about. It follows from that account – if it is an accurate one – that Mr Steiner had some luck: firstly, Terrasson had a suitcase just like Morgan’s. Possibly someone had observed Terrasson’s suitcase and given a very exact description to Morgan or Steiner and they were able to get a duplicate. It would be difficult for Steiner to ask the British Customs and Excise about Terrasson’s suitcase for that purpose, you may think, without revealing that he himself was engaged in setting them up. You may think that British Customs and Excise in Britain would agree – you may want to consider whether they would agree to co-operate on that basis in framing an innocent group of foreigners of good character at the behest of an unknown Brazilian businessman like Steiner. ... Just consider in your mind what it would be like to try and induce the British Customs Service, even as an English subject, to co-operate with you in such a way. ... [I]t is worth just looking at the costs to Mr Steiner if Mr Atlan’s story is right ... to see what was in it for Mr Steiner. His costs: he provided initially some samples [of diamonds] worth seven or eight thousand ... US dollars. ... He lost the cost of sending [his representative] diagonally across the world and back [with the sample] with a bit of time in a hotel. ... He lost the cost of Mr Smolny’s fare in the Euro-class Sao Paolo/Copenhagen/London return, and he lost the cost of Mr Smolny’s London hotel ... . [T]he case is that he lost all those things and whatever is the cost of 18 kilograms of 90 plus percent pure cocaine in Brazil. No doubt that cost is very, very much less than it would be in London, but ... you may think that 18 kilograms of high quality cocaine like that would cost a substantial sum, albeit nowhere near three million pounds, in the providing country. I put those bits and pieces of information together because it is not altogether obvious when one just runs through the story that that is what the information amounts to, but you may think it does, and it may be relevant to considering the likelihood of somebody behaving in the way Mr Steiner is said to have done.”

On 5 July 1991 the jury, by a majority of ten to one, convicted the applicants and Mr Terrasson of importing the cocaine. Mr Smolny was acquitted. On 12 October 1991, after an inquiry by the judge under the Drug Trafficking Proceedings Act 1986, Armand was sentenced to eighteen years’ imprisonment and a confiscation order of GBP 1,918,489.60 with a further ten years’ imprisonment to be served in default of payment. Thierry and Mr Terrasson both received sentences of thirteen years’ imprisonment and Thierry was also ordered to pay a confiscation order of GBP 6,140.66 or serve a further six months in prison.

On 8 August 1991 the first applicant applied for leave to appeal against conviction. On 8 November 1991 the single judge refused his application. The first applicant renewed it before the Full Court of Appeal and the second applicant applied directly to that Court for leave to appeal against conviction. On 8 February 1994 a summary of the case was prepared by the Criminal Appeal Office.

In spring 1994 the applicants learned from the French press (Libération) that a Swiss undercover police officer, Commissioner Cattaneo, had written a report, called “the Mato Grosso Report”, concerning his 1991 investigation into drug trafficking between Brazil and Europe. In early 1995 the applicants’ solicitor obtained a copy of the report. It mentioned Rudi Steiner, describing him as one of three regular informers of the Brazilian, Danish and French police. He was said to have an interest in stolen jewels and a long-term involvement in the traffic from Brazil to Europe of large quantities of cocaine, which he was able freely to obtain from the Brazilian police. In a letter dated 4 December 1995, the Swiss Federal Police Office informed the applicants’ solicitors that the report was the property of the Tessin cantonal police and that in 1991 a meeting was held at Federal Police headquarters in Bern concerning the Mato Grosso investigation but that it was not possible to provide any further information in this connection. The applicants provided a copy of the report to the prosecution, which declined to confirm or deny its authenticity or the truth of its contents, and repeated that there was no undisclosed material relevant to the issues at trial.

The applicants added a further ground of appeal coupled with an application for leave to call fresh evidence. They maintained that the Mato Grosso Report substantiated their suggestion at trial that Mr Steiner had access both to stolen jewels and cocaine and that he had an established relationship with law enforcement agencies in Europe. In their submission, the fact that the jury had not had before it evidence relating to these matters, and the fact that the judge, ignorant of the true facts, had characterised Mr Steiner in his summing up as an unknown Brazilian businessman, rendered their convictions unsafe.

On or about 19 October 1995 the prosecution informed the defence that, contrary to earlier statements, unserved unused material did in fact exist, which the prosecution wished to place before the Court of Appeal in the absence of the applicants or their lawyers. The prosecution then applied ex parte to the Court of Appeal for a ruling whether it was entitled, on grounds of public interest immunity, not to disclose this material. The applicants objected to the holding of an ex parte hearing, in writing on 27 November 1995 and orally before the Court of Appeal on 7 December 1995, submitting inter alia that the court was a tribunal of both fact and law and could be adversely influenced by material which was wrong or inaccurate.

The Court of Appeal dismissed the objections and heard the prosecution’s ex parte application. It decided not to rule on the application unless or until such time that, having considered the applicants’ application to introduce new evidence, it became necessary to do so.

The hearing of the applications for leave to appeal against conviction and to bring new evidence commenced on 18 December 1995. The Court of Appeal indicated its view that the Mato Grosso Report would not be admissible in evidence because, inter alia, its author could not be found to vouch for its accuracy and be cross-examined on its contents.

At the applicants’ request the hearing was adjourned on 19 December 1995 and legal aid was granted to enable their solicitor to travel to Italy where, it was believed, Rudi Steiner was in custody awaiting trial on a charge of smuggling cocaine. However, the Italian authorities were unwilling to assist the applicants without the backing of a formal letter of request from a competent authority. The applicants therefore applied to the Court of Appeal for a letter requesting the Italian authorities to give their solicitor access to the criminal proceedings there. On 10 June 1996 a different constitution of the Court of Appeal ruled that in principle it had jurisdiction to issue such a letter of request. On 19 July 1996, however, the originally constituted court decided that the applicants’ proposed request to the Italian authorities was too wide-ranging and, even if more restrictively drawn, unlikely to elicit information which would be either admissible or of assistance in the appeal. It therefore decided that it was not in the public interest to issue a letter of request, and adjourned the case until after the conclusion of Mr Steiner’s trial in Italy in the Autumn of 1996. In the event, however, Mr Steiner was released on bail and his whereabouts were unknown at the time of the applicants’ appeal hearing in February 1997.

The applicants’ solicitor was able to obtain a number of documents relating to the Italian proceedings, including transcripts of interviews with Mr Steiner, arrest warrants and a list of his previous convictions. He was also able to obtain a statement from Commissioner Cattaneo, the Swiss police officer who had prepared the Mato Grosso Report. In his statement the Commissioner confirmed the authenticity of the report. He stated that he had been introduced to Mr Steiner by a Danish police officer and had become Mr Steiner’s “handler”, passing information to the British authorities during the investigation into the applicants. According to the Commissioner’s statement, his British “contact” had been a customs officer named Martin Crago, whom he had contacted at the British Embassy in Brasilia. He believed that Mr Steiner had spoken to Mr Crago several times and had sought payment for information he had given him. The Commissioner concluded by indicating that he would be willing to appear as a witness in the Court of Appeal.

On 10 January 1997 the applicants added a further ground of appeal, alleging that the prosecution had failed to make full disclosure of the evidence in its possession concerning Mr Steiner, and that the lack of full disclosure rendered their convictions unsafe.

The day before the hearing of the appeal, Commissioner Catteneo informed the defence lawyers that his superiors in the Swiss Police Force had refused him authorisation to attend. The applicants’ counsel suggested to the Court of Appeal that this decision might have resulted from communication between British Customs and Excise and the Swiss authorities, but there is no evidence in support of this. Mr Crago was called by the defence to give evidence. He denied that he had been Commissioner Cattaneo’s contact and declined to answer any question about Mr Steiner.

On 16 February 1997, after hearing the applicants’ application to admit new evidence and holding an ex parte hearing in the absence of the defence lawyers, the Court of Appeal ruled that justice did not require disclosure by the Crown of the public interest immunity evidence. The applicants and their lawyers were not permitted to be present when the court delivered its judgment on disclosure.

On 20 February 1997 the court dismissed the application for leave to appeal. It observed:

“Little, if any, of the material [put before the Court of Appeal by the applicants’ counsel] would have been admissible at the trial. That is not only because it is largely hearsay and unspecific as to events and dates, but simply because much of it is wholly irrelevant to the central issue in this case, namely whether British Customs and Excise officers conspired with Steiner to ‘frame’ the Atlans. However, in considering all the information put before us, we have not been able to avoid taking a view of its effect if, and to the extent that it were admissible and credible, on the outcome of this appeal, that is, whether ... it ‘[might] afford any ground for allowing the appeal’. We have tested that by assuming for the purpose: (1) that Steiner ... was charged in Italy, with others, on a charge of smuggling a large quantity of cocaine from South America to Italy in February 1995; (2) that his role in the importation of the drug to Italy is said to have been as a participating informer to the Italian police; (3) that since at least 1980 he had been concerned in the smuggling of large quantities of cocaine from Brazil to Europe; (4) that for many years before the November 1990 importation of cocaine he had been an informer to various law enforcement agencies in Europe, though there is nothing to suggest that he had any contact with the United Kingdom Customs and Excise before that importation; (5) that at the time of the November 1990 importation he had access to large quantities of cocaine in Brazil at little or no cost; (6) that he had provided information to a European law enforcement agency which led to the United Kingdom Customs and Excise observations of the Atlans before the November 1990 importation; and (7) that, as alleged by Armand at the trial, Steiner may have had a grudge against him arising out of some previous dealing between them. ... [Prosecuting counsel] suggested that the only way Steiner could have been sure of achieving such an end would have been to persuade the officers to ‘plant’ the drug on, or falsely attribute it to, Thierry or Terrasson. Such a conspiracy between Steiner and the officers would have been hard for them to organise to an assured outcome. ... [H]ow could they have organised it so that Terrasson had a suitcase almost identical to that of Smolny? And what possible motive or reason could the officers have had to lend themselves to such a disgraceful enterprise whether Steiner was a known informer or not? In the Court’s view, there is force and hard logic in those submissions. There are also a number of other questions indicating the impossibility of the Atlans’ defence. Why, if they thought they were to collect diamonds from Steiner, not drugs, did Thierry and Terrasson immediately check their luggage onto the return flight without apparently enquiring by telephone why he had not turned up or whether he had been delayed? Why did Smolny and the two of them make no contact in Copenhagen and ignore each other on the plane to Heathrow? Why did Thierry and Terrasson separate as Terrasson boarded a taxi at Heathrow with the case containing the cocaine? Why did the Atlans tell so many lies on arrest and in interview about their activities together before the flight to Copenhagen and about the reason for it? Why did Thierry lyingly state that he had travelled on his own on the return flight to Copenhagen and that he did not know Terrasson? Why did they later give wholly different accounts in evidence at their trial? Why did Smolny make indirect telephone contact with someone on Armand’s telephone number in Brazil on the day of the importation? In the Court’s view, none of its assumptions, some of which go well beyond the new information relied upon by the Atlans, detracts in any way from the overwhelming strength of the prosecution case identified in those various questions or provides any material support for the possibility of a conspiracy between the Customs and Excise officers and Steiner or anyone else to ‘frame’ the Atlans. The jury, by its verdict, clearly rejected Thierry and Terrasson’s suggestion of it. Although Armand did not then suggest such a conspiracy, it was his only possible line of defence, though, for the reasons we have given, a wholly unrealistic one. [Prosecuting counsel’s] submission, which echoes considerations voiced by the judge to the jury in the summing up, provides a logical and complete answer to the complaint based on Steiner’s alleged role as an informer and drug smuggler. If the jury had had before it information matching our assumptions, it might have led them to conclude that Steiner may have provided some information, direct or indirect, to the United Kingdom Customs and Excise, but it could not have left them with any doubt as to the Atlans’ knowing and deliberate involvement in the importation of cocaine into the United Kingdom. The evidence against them, which had been thoroughly and robustly tested at the trial, was overwhelming: the Customs and Excise officers’ observation of their various and highly expensive international air flights, for which there was no plausible explanation or documentation suggesting any legitimate business; the officers’ observation of their movements and meetings in London and of the two strange return trips to and from Copenhagen; their various handling of what was to become Terrasson’s suitcase used for the switch; their lies on arrest and in interview. All that activity pointed only to their involvement in the high value and high risk activity of drug smuggling, not some black market dealing in gems under Brazilian law. Whatever Steiner’s possible role as an informer, the Atlans’ guilty participation in cocaine smuggling is clear. ...”

At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.

In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ([1982] vol. 74 Criminal Appeal Reports p. 302: “the Guidelines”). The Guidelines attempted to codify the rules of disclosure and to define the prosecution’s power to withhold “unused material”. Under paragraph 1, “unused material” was defined as:

“(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.”

Under paragraph 2, any item falling within this definition was to be made available to the defence if “it

According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:

“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”

According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned.

Subsequent to the applicants’ trial in 1992, but before the appeal proceedings in 1997, the Guidelines were superseded by the common law. In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because:

“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”

In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.

The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.


No violation of Art. 8;Not necessary to examine Art. 10 and 11

The applicant was born in 1952 and lives in Panevėžys.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 12 December 1991 the Supreme Court sentenced the applicant to 13 years’ imprisonment for aggravated murder. He served the sentence in the Rasų Prison in Vilnius. The applicant was released on licence on an unspecified date in 2002.

The applicant is the President of the organisation for prisoners’ mutual assistance and support “Freedom” (“Laisvė”). On 9 July 1999 the applicant signed a letter, on behalf of this organisation and certain other prisoners, complaining about the conditions of detention at Rasų Prison and about various allegedly unlawful acts of the prison administration. The complaint was addressed to 10 persons, five of whom were State officials and the five others representatives of the private media. According to the applicant, the complaint was not sent through the prison administration, but rather through an inmate who had been released from the prison, in order to avoid censorship.

On 20 July 1999 the Prison Department Director punished the applicant by prohibiting him from receiving a parcel during a personal visit, having found that the sending of the complaint of 9 July 1999 through channels other than the prison administration had breached Article 50 § 6 of the Prison Code. It was also established that the Prison Interim Rules (fifth addendum) prohibited a prisoner from using a personal computer, as had been the case with this letter. The Director held that the applicant could only send the complaint to the State authorities, not to other organisations or persons (Article 50 § 1). The Director further stated that Article 50 § 6 of the Prison Code prohibited complaints “on behalf of other prisoners”.

Upon the applicant’s appeal, on 8 December 1999 the Ombudsman established that the provisions of the Prison Code had not properly protected prisoners’ rights of association. The Ombudsman did not express her opinion as to the lawfulness of the penalty.

The applicant applied to the administrative courts, claiming that the penalty had been unlawful. On 6 March 2000 the Vilnius Regional Administrative Court disallowed the claim for want of jurisdiction.

On 30 March 2000 the Supreme Administrative Court upheld the decision on appeal. Upon the applicant’s further appeal, on 10 May 2000 the Court of Appeal quashed the lower court decisions. It held inter alia that the prison administration was part of the Executive, and that the administrative courts were consequently competent to examine the applicant’s action concerning its allegedly unlawful acts.

As the applicant subsequently submitted the claim in accordance with the requirements of the Code of Administrative Procedure, his action was examined by the Vilnius Regional Administrative Court on 29 May 2001, in the presence of the applicant, transported to the hearing directly from the prison.

The court rejected the action as unsubstantiated, finding that the penalty of 20 July 1999 had been lawful. It held inter alia:

“Pursuant to Article 50 § 1 of the Prison Code, convicted persons are guaranteed the right to submit applications, proposals and complaints to the State authorities, public organisations and officials. When needed, the prison administration can attach their observations [thereto]. However, convicted persons are prevented from applying to these institutions through channels other than the prison administration (Article 50 § 6 of the Prison Code). The applicant admitted that the application [of 9 July 1999] was sent to 10 addressees illegally, through a person who had completed his sentence and had been released from the prison. The prison administration was therefore deprived of the right to submit their comments as to the issues set out in the application.”

On 11 July 2001 the Supreme Administrative Court rejected the applicant’s appeal against the judgment, holding inter alia:

“The applicant’s claims that the [relevant] provisions of the Prison Code contradict the Constitution are unsubstantiated. The applicant must acknowledge that he has been convicted and sentenced to imprisonment, and that his legal situation is different from that of persons who have not breached the law... .

As appears from the case file, the applicant was punished [on 20 July 1999] not for corresponding with representatives of the media, but for a breach of the requirement under Article 50 of the Prison Code to conduct [such correspondence] through the prison administration. The same can be said regarding the applicant’s claims that, by way of the impugned penalty, he was punished for making criticisms, holding opinions or imparting information.”

Article 49 § 1 of the Prison Code, as then in force, stipulated that convicted prisoners were not restricted in the amount of their outgoing letters. The third paragraph of Article 49 required the prison administration to send a prisoner’s letter to the addressee within three days of receipt or its presentation by the prisoner.

Article 50 § 1 of the Prison Code applicable at the material time provided that convicted prisoners could send “proposals, applications and complaints to the State authorities, public organisations and officials.” The provision also entitled the prison administration to attach its own explanations in relation to such matters.

Until 25 June 1999, Article 50 § 2 of the Prison Code provided that convicted prisoners’ correspondence with the prosecutor could not be subject to censorship (cenzūra). Following a legislative amendment effective since 25 June 1999, convicted prisoners’ correspondence with the State authorities and the European Court of Human Rights could not be censored.

According to the then Article 50 §§ 5 and 6 of the Prison Code, convicted prisoners were not allowed to send “collective complaints and applications” or complain “on behalf of other convicts”.

Under Article 50 § 6 as then in force, convicted prisoners were not allowed to send proposals, applications and complaints addressed to the State authorities through channels other than the prison administration.

Rule 7.3.2 of the Prison Interim Rules, applicable at the material time, read as follows:

“Proposals, applications and complaints [by a convicted person] raising questions within the competence of the prison administration shall not be sent to the addressee, but shall be examined on the spot. Having examined [such a] proposal, application, or complaint, a prison official shall write a report and ... include it in the convicted person’s prison file. Should there be disagreement, the proposal, application or complaint shall be sent to the addressee together with the report. If there is a repeated proposal, application or complaint with the same content, the prison administration will note its previous reply in the report ... If the authority, organisation or official addressed by the convicted person is not competent to decide the questions raised, the prison administration shall advise [the prisoner] to re-address the proposal, application or complaint. Should [the prisoner] refuse to do so, the proposal, application or complaint shall be sent to the addressee.”

The Prison Interim Rules (fifth addendum) applicable at the material time prohibited a detainee from using a computer.

The new Prison Code applicable since 18 July 2001 does not allow any screening of convicted prisoners’ correspondence with the State authorities and the European Court of Human rights. Under Article 41 of this Code, all other correspondence may be censored (cenzūruojama) on the basis of a decision by a competent authority (a prosecutor, prison director or court) taken on a case-by-case basis.

In its ruling of 24 March 2003, the Constitutional Court held that the domestic statutes were in breach of the Constitution insofar as they allowed unjustified censorship of prisoners’ correspondence. The Constitutional Court also held that specific grounds should have been indicated for any particular instance of censorship.

Certain other domestic provisions concerning the censorship of convicted prisoners’ correspondence have been summarised in the judgments of Valašinas v. Lithuania (no. 44558/98, 24.7.2001 §§ 94-97, ECHR 2001-VIII) and Puzinas (no. 1) v. Lithuania (no. 44800/98, 14.3.2002, §§ 15-17).


The applicant, Mrs Leanne Codona, is a British national who was born in 1982 and lives near Fenstanton, Cambridgeshire. She is represented before the Court by Christopher Johnson, a lawyer practising in Birmingham.

The applicant is a gypsy. She lived with her young son and other members of her extended family in caravans on what has become known as Plot 7 Woodside Caravan Park at Hatch, near Sandy in Bedfordshire (‘the Site’). Mid-Bedfordshire District Council (‘the Council’) was responsible for planning control in relation to the Site and was also the responsible housing authority.

The applicant moved with other gypsies onto the Site with their caravans in mid-1997, in breach of planning control. Over time, the Site became divided into 27 plots. The Council first learned in early August 1997 that gypsies were occupying the Site. In October 1998, the Council served enforcement and stop notices on the occupiers of the Site under the provisions of the Town and Country Planning Act 1990. The occupiers appealed. It is not clear from the materials submitted whether the applicant was amongst those who appealed.

Following a local public inquiry held in May 1999, a planning inspector dismissed the appeals by decision letter dated 29 June 1999. He gave the occupiers 12 months within which to comply with the enforcement and stop notices, so as to enable them to apply for planning permission in respect of smaller area. It appears that they took no steps to comply with either set of notices. In late 1999 or early 2000 the Council resolved to take enforcement action by way of injunction or prosecution; at about the same time, the occupiers, styling themselves “the owners of Woodside Caravan Park” made a further planning application, essentially to continue its use, albeit with more landscaping. Again, it is not clear from the materials submitted whether the applicant was involved in the making of this application.

In July 2000, shortly after the expiry of the 12 month period of grace given by the inspector, the Council refused the application for planning permission. Following inquiry, the inspector dismissed the occupiers’ appeal in January 2001.

Early in 2001, before the Council could put into motion steps to evict the occupiers, the latter, including the applicant, made 19 planning applications in respect of individual plots on the site. In the summer of 2001, the Council refused the majority of the applications, including those of the applicant. The applicant and 10 other occupiers each appealed the refusal in their individual case.

In the meantime, in August 2001, the Council issued proceedings for injunctions against named and un-named occupiers of the Site. The latter responded in September 2001 by seeking and obtaining permission to apply for judicial review, it appears against the decision to issue these proceedings.

In late 2001 and early 2002 an inspector held an inquiry into the 11 individual appeals. In June 2002, the inspector dismissed each of them. The Council then immediately sought and obtained (after a three day hearing, at which evidence was given) an injunction against her and all the other occupiers of the Site to remove themselves, their caravans, all hard standings and associated materials from the Site by 1 November 2002 (‘the injunction’).

The applicant responded by making a further planning application, this time in relation to three plots on the land. The Council refused to determine this application because of its close similarity to the previous application. The applicant sought without success on paper to obtain permission to claim judicial review in respect of that decision. At about the same time she and other occupiers applied both to the High Court to vary the terms of the injunction as to the date when they should leave the Site and also to the Council for accommodation as homeless persons under the provisions of Part VII of the Housing Act 1996 (‘the 1996 Act’).

In early November 2002, the High Court refused the occupiers’ application for variation of the injunction and refused them permission to appeal. Very shortly thereafter the Council exercised its power under s.178 Town and Country Planning Act 1990 to clear the majority of the occupiers from the Site, but not the applicant, who with her family continued to occupy so-called Plot 7 (with some 6 or 7 caravans).

In late December 2002, the Court of Appeal refused the occupiers permission to appeal the decision of the High Court. The applicant did not seek to renew orally her judicial review application in respect of the Council’s refusal to entertain her application for planning permission, on the Council agreeing not to enforce the injunction without giving her and her family seven days notice of its intention to do so and to consider and determine their homeless applications (one made on 30 October 2002 and a revised one made on 31 October 2002, the former ultimately being subsumed into the latter).

In that homelessness application, the applicant explained that she had an aversion to conventional “bricks and mortar” and that she:

“...[did] not wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs Codona wishes to live in a caravan and have the support of her extended family around her.”

On 4 March 2003, the Council, acting through Aragon Housing Association (to which it had delegated its housing function) (‘the Association’), accepted its duty under section 193 of the 1996 Act to provide the applicant and her family with suitable accommodation. The Association concluded that they could only offer them “bricks and mortar” accommodation in a “bed and breakfast establishment” until it could make a final offer of accommodation acceptable to them. The letter read to the applicant read in relevant part as follows:

“The Association... have a duty to secure suitable accommodation is available for your occupation and, in doing so, shall have regard to all the relevant circumstances relating to you and those who normally reside with you or might reasonably be expected to reside with you.

The Association is aware that there are six/seven caravans on Plot 7, Woodside Caravan Park, Hatch, the occupants of which you have included in your homelessness application. The Association is also aware that you consider the occupants of these other vehicles as part of your immediate household and that you have requested that they be accommodated with you. In your application you have also indicated that you do not wish to live in accommodation made of bricks and mortar and that you would consider the offer of a plot/piece of land.

Unfortunately, as you aware from previous meetings, the Association is unable to offer land, and can only secure accommodation from either its own housing stock or, on some occasions, property owned by another Housing Association also operating within the Mid Beds Area. Further, it is also highly unlikely the Association will be able to secure a single property large enough to accommodate all the occupants of Plot 7, Woodside Caravan Park. However, given that each family occupying Plot 7 resided in their own separate unit of accommodation, the Association does not consider it unreasonable to offer an individual property for each family on Plot 7 and will endeavour to ensure the properties offered are in as close proximity to each other as is reasonably possible.”

The applicant sought to clarify what accommodation the Association was intending to offer her; they made it clear that they were intending, in the short term, to offer her bed and breakfast accommodation. Through her solicitor, the applicant sought an internal review of this decision pursuant to section 202 of the 1996 Act. On 8 May 2003, the decision was upheld. The Council wrote in the following terms:

“In relation to the question about reasonableness [sic] of an offer of Bed & Breakfast or other temporary accommodation I have reached the following conclusions:

[the 1996 Act and the Homelessness Code of Guidance for Local Authorities (July 2002)] ... provide clarity of what constitutes suitable accommodation. Bed & Breakfast is deemed to be suitable accommodation particularly as... the Council have already confirmed that they will take all reasonable steps to minimise its use. Wherever reasonably practicable the offer of any temporary accommodation would be within Mid Beds and that such accommodation as would be provided would be fit for occupation and would not result in statutory overcrowding [a reference to section 210 of the 1996 Act].

... I note your concerns regarding a stay in bricks and mortar accommodation and would certainly not underestimate the differences [sic] which you would have to face having always lived in a caravan. I understand that you are concerned about living without the support of your family but again... [the Council] have advised that all practical steps would be taken to accommodate you as a close family unit.

Therefore having fully considered the details of your case and your cultural aversion to bricks and mortar as detailed... I find that, while sympathetic to them, I must also take into consideration the general makeup and stock of the housing within the area and also the availability of suitable accommodation and this leaves us with no alternative but to offer bricks and mortar accommodation.”

The applicant then applied to the County Court for a statutory review pursuant to section 204 of the 1996 Act. She advanced multiple grounds, but only one of them, the question of whether the accommodation offered was suitable, was considered at length, the others being found to be entirely groundless. The County Court found: (1) that the Council had accepted and continued to accept that it owed a statutory duty to the applicant and her family to secure that suitable accommodation was made available to them; and (2) the applicant had a “cultural” aversion to living in “bricks and mortar” accommodation. However, the court also accepted that the Council did not have any land available for the applicant or members of her family to pitch their caravans, such that it was impossible for it to offer what she wanted. The County Court judge considered the position by reference to domestic decisions which had, in turn, considered the jurisprudence of this Court. The judge considered that he was bound by the decision in R (Price) v Carmathenshire County Council [2003] EWHC 42 (Admin) (in which the case of Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001I had itself been the subject of consideration). The High Court in Price found that, while it was necessary that special consideration be given to the position of gypsies as a minority, it could not be argued that an offer or bricks and mortar accommodation could never constitute a suitable alternative accommodation for a Gypsy with a cultural aversion to bricks and mortar.

The County Court found that “to impose on the Housing Authority a duty to produce a pitch or berth for six or seven caravans is not supported by statute or by case law, whether in this country or in Europe.” It also found that, while the Council had not expressly considered Articles 8 or 14, it had proceeded in a way compatible with their requirements. The court therefore found that, in the circumstances, the Council’s offer was an adequate discharge of its duty under section 193.

The applicant appealed to the Court of Appeal, which dismissed her application for permission to appeal on 15 July 2004. The Court of Appeal found that, while an empty pitch is not itself “accommodation” for purposes of section 193, a council could, by making it available as a site to pitch a caravan, and with the agreement of the individual, be said to have discharged its duty under the section. The Court of Appeal therefore considered at some length the question of whether bricks and mortar accommodation could be said to be “suitable” for a Gypsy with a cultural aversion to bricks and mortar. It considered the same domestic cases as had been considered by the lower court, as well as Chapman, and found there to be three main criteria for assessing the suitability of accommodation offered:

“1) suitability to a [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223] minimum level of suitability in the nature, location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family including the duration of their likely occupation of it; 2) the absolute nature of the duty which, though, coupled with an elastic concept of suitability is not elastic as to allow an offer below the Wednesbury minimum standard (or... outside the margin of appreciation); and 3) special consideration, in the regulatory and decision-making in individual cases, for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view, so far as is practicable and when considered with all other circumstances, to facilitating their traditional way of life.”

The Court of Appeal found that, if the Council had carried out a genuine consideration of a Gypsy’s needs,

“where land is not available, or cannot readily be made available, on which a Gypsy applicant can station his or her caravan, it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind, providing that it satisfies the Wednesbury minimum line of suitability.”

The Court of Appeal found that the Council and first instance judge had correctly identified and applied the relevant principles in the applicant’s case. It also considered that the first instance judge had properly considered the Article 8 question in his own right.

The Court of Appeal noted that the Council was required as “as a matter of relative urgency to find accommodation for an extended family occupying some six or seven caravans, who were insisting, because of their aversion to conventional housing, on being provided with an alternative site for all of their caravans on which they could continue to live together.” As with the first instance court, the Court of Appeal found that there was no such site available, nor was the Council immediately able to provide long-term conventional bricks and mortar accommodation for the extended family.

It therefore concluded that, “depending on the quality of bed and breakfast accommodation offered and, on the reasonable assumption that the Council will see to it that their stay will only be for a short time,” the Council by offering bed and breakfast accommodation had discharged its duty under section 193 and had acted compatibly with Articles 8 and/or 14. It added the caveat that bed and breakfast accommodation could become unsuitable either under domestic law or by reference to Article 8 if too long a period elapsed before the provision either of conventional housing or, if it could be found, a caravan site.

The House of Lords refused the applicant permission to appeal on 16 December 2004 on the basis that her petition did not raise an arguable point of law of general public importance which ought to be considered by the House at that time, given that it had already been the subject of judicial decision.

On 28 September 2004, the Council reassessed the applicant and made a further offer of temporary accommodation. This was refused by letter dated 30 September 2004. No details of the accommodation offered at that point have been provided by the applicant. It is in particular not clear whether the Council offered bed and breakfast or permanent settled accommodation and/or whether it restated its view that there were no suitable caravan sites available.

On 5 November 2004 (and again on 8 November 2004), the Council gave notice of its intention to enforce the injunction; the High Court dismissed an application for judicial review of the Council’s decision on 2 February 2005.

The applicant and her family vacated the Site on or before 23 February 2005. It appears that they are now on unauthorised sites, and the applicant’s family is split because they have been unable to find a site where they can remain together. She contends that she (and her family) are now vulnerable to proceedings for possession from local authorities and private landowners, and also to the imposition of removal directions and/or possible criminal proceedings under sections 61, 62A-E, 77 and 78 of the Criminal Justice and Public Order Act 1994.

The applicant has submitted a press release from the Office of the Deputy Prime Minister dated 7 March 2005, from which it appears that the Government is consulting on a revision to the directions given to local authorities with a specific view to increasing the number of authorised caravan sites available for use by travellers and gypsies.

Local authority duties to the homeless are provided in Part VII of the Housing Act 1996. Section 193 provides, in material part:

“(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”

Section 206 provides, again in material part,

“(1) A local housing authority may discharge their housing functions under this Part only in the following ways –

(a) by securing that suitable accommodation provided by them is available,

There is no definition of the word “suitable” in this section.

By section 175 (2) of the 1996 Act

“A person is also homeless if he has accommodation but –

(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.”

The meaning of the word “suitable” within the context of sections 193 and 206 of the 1996 Act has been considered in several domestic cases. The most relevant is that of R (Price) v Carmathenshire County Council [2003] EWHC 42 (Admin), in which the main issue was whether the Gypsy in question had a cultural aversion to bricks and mortar. However, the High Court had to consider as a starting point whether such an aversion of itself could prevent an offer of such accommodation from amounting to an offer of suitable accommodation. The High Court, expressly considering itself to be following Chapman, accepted that it was incumbent on local authorities to give effect to the positive obligation imposed on contracting States under Article 8 to facilitate the Gypsy way of life, but found that, had the respondent council concluded that:

“the claimant’s cultural commitment to traditional life was so powerful as to present great difficulties in her living in conventional housing, it was not bound by duty to find her a pitch, but it would have been a significant factor in considering how far it should go to facilitate her traditional way of life.”


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award

Christos Rozakis;David Thór Björgvinsson;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two articles about X, a well-known television actor. Between May 1998 and November 2003 X had played the part of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings, until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode).

On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of drugs. After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing information according to which four grams of cocaine had been found at X’s home that he had had sent to him by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined 5,000 euros (EUR).

At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival (Oktoberfest) for possession of cocaine. In a sworn statement (eidesstattliche Versicherung) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and, if so, on what grounds. The police had confirmed that X had been arrested in the Käfer tent in possession of cocaine, without giving any further details.

According to that statement, the journalist had then contacted the public prosecutor, W., from the public prosecutor’s office of Munich Regional Court I, in charge of relations with the press, and had asked him for information. W. had confirmed that X had been arrested in the Käfer tent in possession of cocaine. According to W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession of an envelope containing 0.23 grams of cocaine, had arrested him. According to W., the arrest had taken place at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated.

In its 29 September 2004 edition, the applicant company’s daily newspaper, the Bild, published the following headline in large type on its front page:

“Cocaine! Superintendent Y caught at the Munich beer festival.”

The article, which was printed in small type, read as follows:

“He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival the police caught X (... years old, Superintendent Y on television), in possession of a small envelope of cocaine. See page 12 for the details.”

The following headline appeared on page twelve of the daily:

“TV star X caught in possession of cocaine. A bretzel (Brezn), a beer mug [containing a litre of beer – Maß] and a line of coke (Koks).”

The article, printed in small type, read as follows:

“Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in arm. And sniffing.... In the celebrities’ tent the TV star X (... years old, whose real name is ...) came out of the gents tapping his nose and attracting the attention of police officers. They searched the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested. Public prosecutor W. from Munich told the Bild: “He was making suspicious movements with his hand, tapping his nose with his fingers. This of course attracted the attention of our officers. An investigation is under way. Only a small quantity of cocaine is involved though. W. : “Right in the middle of the festival grounds (Wiesn) – it might have been snuff tobacco, but our men have a flair for this sort of thing...”. X had already had a run-in with the law for possession of drugs. In July 2000 the Superintendent from the TV series had been given a five-month suspended prison sentence and two years’ probation and fined EUR 5,000. He was accused of illegally importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his address in Munich. His probation period ended two years ago. The quantity of the drug found in the tent ... is negligible. What can the actor expect? According to a legal expert questioned by Bild: “Even if the probation period is over the previous conviction is recent. X may get an unsuspended prison sentence – up to six months”. Why prison? “X has apparently not been sufficiently daunted by the suspended prison sentence”. The actor has probably had to submit to a forensic head hair examination. Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken. Yesterday X refused to comment. P.S: “In every toilet cubicle in the tent ... there are signs saying: “The use of drugs is liable to prosecution!”

The article was accompanied by three photos of X, one on the first page and the other two on page twelve.

On the same day, during the morning, press agencies and other newspapers and magazines reported on X’s arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported in the Bild to other written media and television channels, two of which (“RTL” and “pro7”) broadcast the same reports that evening. During one of the broadcasts the prosecutor W. made the following statement:

“The police officers saw X making a suspicious movement with his hand while coming out of the men’s toilets and concluded that he had taken something. They searched him and found an envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs and given a suspended prison sentence. He is not a first offender (Ersttäter). He should have known that he should not touch drugs. He can now expect a further prison sentence, even if the quantity found on him is insignificant.”

In its 7 July 2005 edition the Bild printed the following headline on its inside pages: “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!”

The article read as follows:

“Munich – On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who had to explain himself to the Munich District Court [Amtsgericht] on charges of “unlawful possession of drugs”, has confessed to taking drugs! X’s counsel ... stated: “We fully acknowledge the offence with which we have been charged in the indictment”. X confessed to the court: “I have occasionally smoked cannabis and taken cocaine from time to time. This has not made me happy. It had not turned into a habit but is just something that I have done from time to time”. Question from the court ...: “Are you currently taking drugs?” Reply from X: “No, I smoke cigarettes.” The sentence: a fine of EUR 18,000. The court: “The accused’s full confession has counted in his favour.” On TV X continues investigating on the side of law and order. In Vienna he is in front of the cameras for the television series ... which should be starting on the second channel in the autumn.”

The article was accompanied by a photo of X.

Immediately after the articles appeared, X. instituted proceedings against the applicant company in the Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by him, to Bunte magazine among others, together with photos of him.

On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article, following a request lodged by X on 29 September 2004. In a judgment of 12 November 2004 it confirmed the injunction. That judgment was upheld by the Court of Appeal on 28 June 2005.

On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge that judgment, which became final.

On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights (Allgemeines Persönlichkeitsrecht). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004).

According to the Regional Court, the article in question, which mentioned X’s name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal’s private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue.

The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X’s person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court pointed out, whilst X’s previous conviction for a similar offence was such as to increase the public’s interest, it was his only previous conviction and, moreover, dated back several years.

The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information. The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series.

The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X’s name – often without a photo – among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye.

X had, to an extent, sought to attract the public’s attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other wellknown figures who avoided the limelight. According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights.

The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court’s view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character.

The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court’s view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor’s professional prospects and his difficulties in his relationships.

Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious (gravierend) interference with X’s right to the protection of his personality rights.

The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor’s office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor’s office could be regarded as a “privileged source” (privilegierte Quelle) of information that did not, as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X’s right to protection of his personality rights. In the court’s opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press.

The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor’s office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media.

In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person’s name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person’s identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake.

The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X’s name by the public prosecutor’s office.

On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect’s name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience.

The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court’s opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star.

The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time (längerer Zeitraum). However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public’s interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X’s appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question.

The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public’s attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men’s toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X’s arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view.

Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor’s office, the Court of Appeal stated that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice.

On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law.

On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions (Anhörungsrüge). It stated that when balancing the public’s interest in being informed about public criminal proceedings against an interference with the defendant’s private sphere, the Court of Appealcision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard.

On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against any further publication of the second article.

By a judgment of 5 May 2006, the Regional Court granted X’s application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case.

On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above). On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public’s interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose (informationelle Selbstbestimmung).

The applicant company’s reliance on the high audience rating of the television series Y. did not, in the Court of Appeal’s opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men’s toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine.

The Court of Appeal added that whilst the fact that the “quality press” had reported the case might indicate that there was a not insignificant (nicht geringes) interest in reporting it, that was not a basis on which to conclude that the interference with X’s right to the protection of his personality rights had been lawful.

The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter’s judgment of 15 November 2005 (see paragraph 48 below).

On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions.

On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings. It stated that it was not giving reasons for its decision.

On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006 edition of the daily newspaper Die Welt and on the newspaper’s internet page (welt.de) on 22 March 2007 the following statement by one of its editors:

“Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich.”

Article 823 § 1 of the Civil Code (Bürgerliches Gestezbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to make compensation for the resulting damage.

In accordance with Article 1004 § 1, where another’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction.

In its judgment of 15 November 2005 (no. Vi ZR 286/04) the Federal Court of Justice reiterated its established case-law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect. The facts of the case were a fine and a prohibition on driving imposed by the French courts for speeding on a motorway (211 instead of 130 km per hour) on a person known to the public. The Federal Court of Justice found, firstly, that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations, and, secondly, that the offence had put other motorists at considerable risk. Moreover, both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well-known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned. The Federal Court of Justice pointed out that the Court’s judgment in the case of Von Hannover v. Germany of 24 June 2004 (no. 59320/00, ECHR 2004VI) allowed of no other conclusion. The articles (and photos) in that case had concerned only scenes from Caroline von Hannover’s daily life, and had aimed merely to satisfy the curiosity of a particular readership regarding her private life.

In a decision of 13 June 2006 (no. 1 BvR 565/06), a three-judge panel of the Federal Constitutional Court decided not to entertain a constitutional appeal lodged against the judgment of the Federal Court of Justice and upheld the latter’s findings.

The relevant passages of Recommendation (Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003 at the 848th meeting of the Ministers’ Deputies, read as follows:-

Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so;

Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society;

Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system;

Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention;

Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states:

take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions,

Appendix to Recommendation Rec(2003)13

Principles concerning the provision of information through the media in relation to criminal proceedings

Principle 1 - Information of the public via the media

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.

Principle 2 - Presumption of innocence

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial.

Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.

Principle 3 - Accuracy of information

Judicial authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions. In the latter case, this should be clearly indicated to the media.

Principle 4 - Access to information

When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request.

Principle 8 - Protection of privacy in the context of on-going criminal proceedings

The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”

The relevant passages of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, read as follows:-

The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.

Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.

Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.

The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.

The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. ...”