No violation of Art. 6-1+6-3-d;No violation of Art. 10

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant is a journalist by profession. At the relevant time she was employed as a reporter at 24 Hours, one of the leading national daily newspapers. She continues to work there at present.

Following a serious banking crisis in 199697, during which a number of banks were sunk into insolvency by, inter alia, non-performing and unsecured loans extended to corporate and individual clients, the Bulgarian legislature enacted a comprehensive package of bank reform legislation (see Capital Bank AD v. Bulgaria, no. 49429/99, § 45, 24 November 2005). Part of that package was the Information on NonPerforming Credits Act of 1997 (“Закон за информация за необслужвани кредити”), which stipulated that the Bulgarian National Bank should compile a list of all bank borrowers with loans that had been due for more than six months, send this list to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities, and the National Assembly, and publish it in a special bulletin. The persons on this list were colloquially referred to as “credit millionaires”.

On 21 January 1998 the head of the banking supervision department of the Bulgarian National Bank presented the list to the chairman of the National Assembly.

Between 1994 and 1997 Mr M. D. was a Member of Parliament elected on the ticket of the political party Movement for Rights and Freedoms. He was deputy chairman of the Economy Committee and a member of the Budget and Finance Committee of the National Assembly. In the spring of 2001 he became involved with the newly formed coalition National Movement Simeon II, which won the parliamentary elections on 17 June 2001. During the 1990s Mr M. D. was a member of and shareholder in a number of commercial companies. Between 1995 and 2001 his name was mentioned in at least twentyfour reports in national newspapers.

On 22 January 1998 Trud, a leading national daily newspaper, published an article under the headline ‘Credit millionaires disclosed’ and the caption ‘Several incumbent and former members of Parliament appear on the list’. In the article the newspaper reported on the handover of the list of “credit millionaires” to the chairman of the National Assembly the previous day and mentioned, inter alia, that several companies connected with the name of Mr M. D. were on the list. According to the article, the company Maxcom Holding owed 3.2 billion old Bulgarian levs (BGL) to one bank, the company FBK Maxcom owed BGL 9.4 billion to another bank, and the company Maxcom OOD was indebted in an amount of BGL 7.8 billion.

On 30 January 1998 Mr M. D. issued civil libel proceedings against the publisher of Trud, Media Holding AD. He said that the allegation made in the article that he was a “credit millionaire” was not true. He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of Parliament. He sought BGL 10,000,000 in nonpecuniary damages.

In a judgment of 9 January 1999 the Sofia City Court dismissed the action. It held that Mr M. D.’s allegations had not been supported by any evidence and were therefore unsubstantiated. Neither party had attended either of the hearings in the case. Mr M. D. had not sought leave to adduce any evidence. He had therefore not proven his claim that he had suffered any damage on account of the impugned article. Apparently Mr M. D. did not appeal and the judgment entered into force on 9 March 1999.

On 3 August 2001 the parliamentary group of the National Movement Simeon II held a closeddoors meeting in the National Assembly in order to discuss, inter alia, the candidates for the position of deputy Minister of Finance in charge of customs. For this reason the applicant, who at that time worked as a parliamentary reporter, went, together with other journalists, to the National Assembly lobby. There they met Members of Parliament, who told them that Mr M. D. was being considered for the abovementioned position. One of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr M. D.’s name featured on the list of “credit millionaires”. At that point the applicant called the editor of 24 Hours and said that she would prepare an article on the topic. She also telephoned Mr N., the press officer of the customs administration, asking him whether Mr M. D.’s name was on the list of “credit millionaires”. Mr N. replied that as far as he knew that was so, and referred the applicant to the Full list of credit millionaires, published by the Trud publishing house in 1998. It was stated in the preface of that publication that two companies linked with Mr M. D. – FBK Maxcom and Maxcom OOD – were on that list. The applicant checked in an electronic law database and found that Mr M. D. had been a member (first directly, and after 1993 through another company) of the company Vitaplant OOD, which was also among the debtor companies on the list. After unsuccessfully trying to contact Mr M. D. by telephone, she wrote an article about the story.

According to the applicant, in the meantime other journalists from 24 Hours had contacted various institutions which could have had information on the matter (the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the National Assembly, the Ministry of Finance, the Bulgarian National Bank) and all of them had confirmed that Mr M. D. featured on the list of “credit millionaires”.

The article, which appeared on page eight of the 4 August 2001 issue of 24 Hours under the headline “Foreign Company to Run Customs under Concession?” and the applicant’s byline, was worded as follows:

“The King’s men were intensely discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. Simeon SaxeCoburggotski was concerned about the fact that [Mr M. D.]’s name is on the list of credit millionaires, confided sources close to him. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Three of his companies – Maxcom Holding, FBK Maxcom and Maxcom OOD –, had debts totalling 20,400,000 levs. The uncertainties about [Mr M. D.] have brought the name of [Mr E. D.] on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.”

The article was accompanied by photographs of Mr M. D. and Mr E. D. with their names in the captions.

Later that day the applicant got in touch with Mr M. D. and was told that the statements in her article were not true.

After the first printed copies of the newspaper were circulated, Mr M. D. called 24 Hours’ editor and said that he was not a shareholder in Maxcom Holding, FBK Maxcom, or Maxcom OOD. The editor then decided to amend the article in the subsequent printed copies of the newspaper. The new version, which featured solely the picture of Mr M. D., but not that of Mr E. D., read as follows:

“The King’s men were discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister.

According to insiders, Simeon SaxeCoburggotski received reports that [Mr M. D.] is on the list of credit millionaires. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor.

Mr M. D. categorically denied this. He said ‘I am not a debtor, but a creditor’.

According to former Members of Parliament, the allegations that he was a credit millionaire were being spread by people who wanted to smear his name. Illwishers used the similarity between the names of [Mr M. D.]’s companies and the names of those companies featuring on the list of credit millionaires. This was done to foil his candidacy for the position of deputy Minister of Finance. In recent days the name of [Mr E. D.] has been brought on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.”

The first version of the article was featured in 5,205 copies of the newspaper, 5,079 of which were sold. The second version was featured in 230,817 copies, 202,568 of which were sold.

Two days later, on 6 August 2001, 24 Hours ran an additional article including the response from Mr M. D. The article, which appeared on page ten, was under the caption ‘You are wrong’ and its headline was ‘[M. D.]: I am not a credit millionaire!’. It read as follows:

“In an article on page eight of issue 208 of this year, under the headline ‘Foreign Company To Run Customs under Concession?’, [the applicant] links my name to companies which feature on the list of credit millionaires.

This statement does not correspond to the truth.

I reiterate that I have never been a shareholder, member or manager in the companies Maxcom Holding, FBK Maxcom, or Maxcom OOD, nor can I be in any other way linked with debtor companies. Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation.

To my displeasure I notice that 24 Hours, a newspaper which I respect, has joined in the foul attack.

In my opinion, the publication of unauthentic, unverified and incorrect information does no honour to your newspaper and offends its readers.”

Alongside the article there was a photograph of Mr M. D. with his name in the caption.

Shortly after these events Mr M. D. announced that he had withdrawn his candidacy for the post of deputy Minister of Finance.

On 8 October 2001 Mr M.D. lodged a criminal complaint against the applicant with the Sofia District Court. He alleged that the statements made in the article were not true. In particular, he had never been a shareholder, member, or manager of the companies mentioned in the article – Maxcom Holding, FBK Maxcom or Maxcom OOD –, nor did he appear as an individual on the list of “credit millionaires”. In his view, by writing the article containing the untrue statements the applicant had committed libel, contrary to Articles 147 § 1 and 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). He further alleged that he had suffered substantial nonpecuniary damage as a result of the applicant’s act, and sought compensation in the amount of 10,000 new Bulgarian levs (BGN). He declared that he would donate any award made by the court to a church.

On 28 November 2001 the judgerapporteur at the Sofia District Court sent a copy of the criminal complaint to the applicant, invited her to file a reply, and set the case down for trial.

In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven. The article did not consist of her own statements; she had simply relayed information coming from Members of Parliament. This information had been verified through all available sources. The applicant had been certain that Mr M. D. had indeed been a “credit millionaire”, which was the actual vilifying circumstance, not the mere fact that he was involved in certain companies.

The trial took place on 25 March, 10 April, 15 May, 19 June and 16 September 2002. The Sofia District Court admitted in evidence a number of documents produced by the applicant and Mr M. D., and questioned several witnesses, one of whom was Ms N., a journalist who had been in the National Assembly on 3 August 2001 (see paragraph 12 above). While initially giving leave to the applicant to adduce evidence relating to Mr M. D.’s links with companies which had failed to repay bank loans, the court later revoked its order and refused to admit such evidence, holding that these matters could be elucidated through the evidence already gathered. The court also gave leave to the applicant to call one of the Members of Parliament whom she had talked to on 3 August 2001. She tried to secure his presence, but failed to do so. She accordingly left it to the discretion of the court to subpoena him, but refused to name him. Her counsel said that even though the MPs who had spoken to the applicant had been named in Ms N.’s testimony, that did not allow the unequivocal identification of this witness and hence precluded a request to summon him. The court held that, failing clear identification of the witness, it was impossible to subpoena him. It added that the defence had had ample opportunity to secure his presence, but had failed to do so.

In a judgment of 16 September 2002 the Sofia District Court found the applicant guilty of having divulged a vilifying fact about another person in a publication, contrary to Article 147 § 1 and Article 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). The court applied Article 78a of the Code (see paragraph 34 below) and replaced the applicant’s criminal liability with an administrative fine of BGN 500. The court further ordered the applicant to pay Mr M.D. BGN 2,000 plus interest from 4 August 2001 until settlement, as compensation for his injured reputation, and awarded him BGN 550 in costs. The court described the facts set out in paragraphs 1219 above, except the part concerning Mr M. D.’s indirect membership of Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and held as follows:

“...The actus reus of the offence of defamation is characterised by the divulging of vilifying – and untrue – circumstances relating to a specific individual. The expression used by [the applicant] – ‘credit millionaire’ – is derived from the Information About NonPerforming Credits Act [of 1997], on the basis of whose section 3 the administration of the [Bulgarian National Bank] has published a list of all debtors, persons who have outstanding credits. Therefore the expression ‘credit millionaire’ has a negative connotation and presupposes intolerance and extremely negative public attitudes. These are people who have prospered financially due to credits from financial institutions which they have failed to repay. In this sense, from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest. The law bans these persons from holding certain official posts.

The above characterises the expression used by [the applicant] – ‘credit millionaire’ – as vilifying and damaging to the public reputation of the person [in respect of whom it is used] and the esteem of his personality. The vilifying circumstance has been divulged through the press to a large number of readers. The fact that the first version of the article had a smaller circulation than the second, which also contained [Mr M. D.’s] rebuttal, is of no consequence, because the circulation of the printed material has no impact on the criminality of the act.

The act has been committed wilfully, the form of mens rea being recklessness. [The applicant] realised the criminality of her act and its injurious consequences, and accepted that they would occur. [She] pursued another aim, which is not unlawful –informing the newspaper’s readers of the latest news about the candidates for the post of deputy Minister of Finance in the SaxeCoburggotski cabinet –, but was aware that the information published was untrue and did not correspond to the actual facts. The court’s findings in this respect are based on the fact that [the applicant] did not carry out a proper journalistic enquiry before publishing her story.

No regulations for conducting a journalistic enquiry were in existence at the time when the article was published. Accordingly, in his or her work each journalist had to abide by and comply with the settled customary rules in the branch, which are in line with Articles 39 to 41 of the [Constitution of 1991 – see paragraph 31 below], which contain requirements and restrictions in the exercise of the rights proclaimed thereby. In the instant case, it was established that [the applicant] had not carried out the required comprehensive and thorough journalistic enquiry, as required by the rules of investigative journalism, that is, to receive confirmation from two independent sources.

The first of [the applicant]’s sources was a Member of the majority in Parliament, who conveyed the information relating to [Mr M. D.] off the record, citing no sources, that is, it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels. He should have therefore, according to best journalistic practice, been considered an unreliable source. This fact obliged [the applicant] to duly check the information she had received through other, public and reliable, sources and not trust completely what she had heard in Parliament. The information received from [Mr N.] did not in fact constitute another dependable source of information. The latter relied on the publication of the Trud publishing house The Full List of Credit Millionaires, in whose preface [Mr M. D.] had been identified as a debtor through three of his companies – FBK Maxcom, Maxcom Holding and Maxcom OOD. [The applicant] was therefore under the obligation to check whether [Mr M. D.] indeed owned shares in these companies, because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic. This conclusion is reinforced by the fact that the publication in issue gave the names of the companies, not of their shareholders, for which reason the statement in its preface was not confirmed by its contents. However, [the applicant] did not take the requisite steps to verify the facts alleged by [Mr N.] and the publication’s preface. She merely established, after a check in the APIS information system, that [Mr M. D.] was a shareholder in the company Vitaplant [OOD], which also featured on the list of persons with outstanding credits. The company Vitaplant [OOD] was not, however, among the companies connected to [Mr M. D.]’s name in the publication’s preface, and that should have prompted [the applicant] to doublecheck her assumptions. However, [the applicant] assumed that the link uncovered by her was sufficient to corroborate the statement that [Mr M. D.] was a credit millionaire. She thus failed to comply with her duty of thoroughly verifying the information through reliable, independent sources. [The applicant] did not check whether the statement in the [publication’s] preface that [Mr M. D.] was connected to three debtor companies corresponded to the truth, which was mandatory. The fact that she works at a daily newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries. She had access to information in the register of companies, which is public, in order to check the veracity of the information she had gathered. Not only did [the applicant] not do that, but in her article she relied on a document with which she had not been duly acquainted – the official list of borrowers compiled by the [Bulgarian National Bank]. The statement in her article that the three companies – Maxcom Holding, Maxcom OOD and FBK Maxcom – were companies of [Mr M. D.] was not supported by due journalistic enquiry. Her source, [Mr N.], relied on the publication of Trud, which in fact means that [the applicant]’s information was solely based on the preface of the list, which was not enough, considering that this information had not been verified either.

The readers’ right to be informed of socalled ‘hot news’ does not absolve the article’s author from checking carefully the accuracy of her publication. The fact that [the applicant] did not take the necessary steps in this direction confirms the court’s conclusion that her act was wilful. There must be a balance between the reader’s right to information and the rights of the persons affected by journalistic materials. The one responsible for this balance is the author, who must abide by the rules of investigative journalism. It is beyond doubt that the time and means available to a journalist on a daily newspaper for a proper enquiry concerning a current issue are greatly limited, but [the applicant] was bound to do what was possible to verify the information she had gathered. In the case at hand [the applicant] had enough time to consult the register of companies, so as to report on the rumours heard in the lobby of the Parliament building and at the same time to present the actual facts. It is precisely [the applicant]’s passivity in respect of this second element which makes her act criminal. The lack of a full enquiry into the facts, performed with due journalistic care, and the applicant’s own statement that she did not carry out a full enquiry into Mr M. D.’s involvement in the companies mentioned in the article, allow [the court to conclude] that she was not confident that her allegations were true. On the contrary, the fact that [the applicant] is an experienced journalist, maintains contacts with colleagues of hers from other media, with whom she exchanges information concerning such news, allows [the court to conclude] that she knew that information about outstanding credits of [Mr M. D.] had been published before. She was therefore aware that the two newspapers which had published similar articles had also published refutations, and had apologised to [Mr M. D.] for the untruthfulness of their allegations. [The applicant] did not do all she was professionally bound to do in respect of the specific enquiry, which points to intent. She allowed herself to rely on sources which she had not checked, but which made her article look persuasive and objective.

CONCERNING THE PENALTY:

In determining the type and quantum of punishment the court had regard to the following:

The court is of the view that all necessary prerequisites for replacing [the applicant]’s criminal liability and imposing an administrative punishment on her are in place. The offence committed by her is punishable by a fine. [The applicant] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability... For this reason, the court is of the view that [the applicant] should be exonerated of criminal liability and punished administratively by a fine.

In determining the amount of the fine the court had regard to [the applicant]’s means, earned as a journalist, as well as to certain mitigating circumstances, such as a critical attitude to her act, cooperation in establishing the facts, [and] good character. All of these favour a lower fine, that is [BGN] 500.

The court contemplated the possibility ... of imposing an additional punishment, but accepted that this is not necessary as the fine is sufficient to reform and deter [the applicant] and the general public.

CONCERNING THE CIVIL CLAIM:

The existence of damage resulting from the offence under Article 147 § 1 of the [Criminal Code of 1968] is an unrebuttable presumption and, in view of the court’s finding that the applicant acted with mens rea, the only outstanding issue is the quantum of damage. It is beyond doubt that the publication authored by [the applicant] damaged [Mr M.D.]’s reputation and public esteem. He should therefore be compensated for that damage. At the same time it has not been proved beyond doubt that the article has affected [Mr M. D.]’s business relations with his partners, [or] has hindered his prospective career in the executive, that is, has prevented him from being appointed to a highranking position. [His] allegations in this respect remained a mere conjecture, lacking clear distinction between reality and possibility. All averments in a criminal complaint are subject to proof at trial, including the quantum of the damage. For this reason, the lack of evidence leads to the conclusion that [Mr M. D.]’s claim for BGN 10,000 is unproven. [The claimant] is not relieved of the burden of proving the exact quantum of the sustained damage, irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes.

The court ruled in equity, as required by [the law] and the established caselaw, accepting that [the applicant] should be ordered to pay [Mr M. D.] the amount of BGN 2,000 as compensation for the nonpecuniary damage suffered as a result of the offence. [The applicant] is to pay interest on this amount at the legal rate from 4 August 2001 until settlement. ...”

On 15 October 2002 the applicant appealed to the Sofia City Court. She argued, inter alia, that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party. It had thus restricted her capacity to prove the veracity of her allegations against Mr M. D. The lower court had also erred in accepting that she had acted with mens rea, which was excluded on account of, in particular, the fact that there had been prior publications stating that Mr M. D. was a “credit millionaire”. The applicant finally stated that her conviction and sentence were contrary to, inter alia, Article 10 of the Convention. A journalist had the right to impart information received from others acting in their official capacity, which is how it was received in this case. She was under no obligation to verify publicly disclosed information. She had received the information from a Member of Parliament, immediately after a discussion within his parliamentary group on the matter, and had simply passed it on.

In a supplementary memorial of 24 March 2003 the applicant further said that she had not committed the actus reus of defamation, as Mr M. D. was indeed a “credit millionaire”, which was the actual vilifying circumstance, not the fact that he had been involved in certain companies. This fact was further evidenced by the judgment dismissing his tort action against Media Holding AD. The evidence presented merely proved that he was not on the list of “credit millionaires” as a physical person. It was therefore still possible that he could have been one through participation in certain companies, as she had tried to prove. The lower court’s findings in respect of, inter alia, Mr M. D.’s direct and indirect participation in the companies mentioned were likewise erroneous. The court had also incorrectly held that the applicant had acted recklessly. She personally, and also her colleagues, had made numerous checks through various sources, which had led them to believe, in good faith and in line with the rules of investigative journalism, that Mr M. D. was a “credit millionaire”. The alleged insufficiency of the verification could only indicate negligence, not intent. Finally, the fact that the impugned information had previously been made public excluded defamation.

The Sofia City Court held a hearing on 31 March 2003. It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr M. D.’s participation in Vitaplant OOD, refused certain other evidentiary requests by the applicant, and heard the parties’ arguments.

In a final judgment of 19 May 2003 the Sofia City Court noted the facts set out in paragraphs 1216 above, including the part relating to Mr M. D.’s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and upheld the applicant’s conviction and sentence in the following terms:

“... The parties are not in dispute about the facts [established by the court]. There is also no dispute about the [lower court]’s finding that the statement that a given person is a ‘credit millionaire’ because companies owned by him appear on the [Bulgarian National Bank]’s list of debtors with ‘bad credits’ is objectively vilifying for him or her. [The applicant’s] defence raises legal arguments, which outline two disputed questions. The first is whether there is defamation where the facts set out in the publication are untrue, but the conclusion made on their basis is true on other grounds. The defence argues that [Mr M. D.] is in fact a ‘credit millionaire’, not on account of the companies cited in the publication, but because of [his involvement in] another company – Vitaplant OOD. The second is whether an individual who owns a share in a company with outstanding credits can be deemed a ‘credit millionaire’. The view of [the court] on these questions is as follows:

The expression ‘credit millionaire’ is not legally defined. It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use, by them personally or by physical or legal persons connected with them, of unsecured bank credits, which have remained unpaid and have been listed by the [Bulgarian National Bank] as unrecoverable. The expression is pejorative, because it implies that the people in question are supposedly responsible for the crisis in the banking system and the socalled ‘draining’ of the banks – generally persons who have become rich in a criminal way. A list of ‘credit millionaires’ as an official document emanating from the [Bulgarian National Bank] has never existed. There exists a list of the persons with outstanding credits as of 1997, which has been compiled pursuant to the Information on NonPerforming Credits Act [of 1997]. This Act requires the [reportable] credits to exceed 5,000 German marks – it does not concern only credits with seven or more figures. According to [the Act], the list is published in a special bulletin, which is not covered by bank secrecy and is sent to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities and the National Assembly. After its receipt at the National Assembly on 21 January 1998 the list was made available to journalists and was published in full or in part as a list of the “credit millionaires”. In fact, the vilifying circumstance is not to own specific companies, but to be a ‘credit millionaire’. In the view of the [court], however, such a dissection of the statement in [the applicant]’s publication and the application of paragraph 2 of Article 147 of the [Criminal Code of 1968] to one of the resulting parts cannot be made, for the following reasons. Readers are not bound to accept journalistic statements uncritically. An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful. Such facts in the case at hand are the citing of an official document featuring [Mr M. D.]’s name (untrue) and the citing of specific companies owned by [Mr M. D.] with specific debts (also untrue). There is no doubt that without these untrue allegations the statement that [Mr M. D.] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him. It would be wrong to divide an averment containing a vilifying circumstance into two parts for a second reason: the damage to the reputation and the public esteem of a defamed person is not a constant value. The degree of that damage may vary significantly. In the instant case, where there is a statement that an individual is a ‘credit millionaire’ because of his involvement in companies which have received credits, the [court] considers that the greater the amount of the outstanding credits, the more numerous the companies having received them, the more direct the connection of the individual with these debtor companies, and, last but not least, the noisier the public scandal, the more vilifying is the statement. [Mr M. D.] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not twenty million levs, if the article had cited one unknown company instead of three companies which had become notorious because of their link with criminal investigations, and if [Mr M. D.] had not been indicated as [their] sole owner instead of merely a shareholder [in them].

Because of the meaning implied in the expression ‘credit millionaire’ the [court] considers that in the event of a credit taken by a company, an individual could be deemed as having profited therefrom, in the range of millions of levs, only if [his or her] connection with that company is direct, and not through the intermediary of participation in companies which in turn participate in other companies, and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him. The link may likewise exist through participation in the management [of these companies]. At the time when the credit was received [Mr M. D.] did not participate directly in Vitaplant [OOD]. He was neither a manager of that company, nor a substantial shareholder. The credit itself was not in an amount which would make him a ‘millionaire’.

The arguments relating to the existence of a civil judgment dismissing a tort action by Mr M. D. against Media Holding AD are irrelevant, as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the nonpecuniary damage sustained, whereas the civil courts are under no obligation to gather such evidence. This judgment is not binding on the criminal court.

The arguments relating to the lack of mens rea are unfounded. The court considers that the [lower court] has correctly accepted as true [the applicant]’s statements that she had verified the information from two independent sources – the Members of Parliament and [Mr N.], after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers. In spite of that, the defamation was committed recklessly. [The applicant] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access. The opinion of the MPs was unofficial, as established by the testimony of [the applicant]’s colleagues, whereas [Mr N.], not having his own information, referred [the applicant] to the publication of Trud. This leads to the conclusion that [the applicant] was aware of the possibility that the vilifying information might not be accurate, but disregarded this concern in order to get her story to print as soon as possible.”

The relevant provisions of the Constitution of 1991 read as follows:

“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.

This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”

“The press and the other mass media shall be free and not subject to censorship.”

“1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals.

Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or it affects the rights of others.”

Article 147 of the Criminal Code of 1968, as in force since March 2000, provides as follows:

“1. Whoever divulges a vilifying fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by a public reprimand.

The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence.”

If the defamation is committed through a publication, it is punishable by a fine ranging from five to fifteen hundred levs, as well as by a public reprimand (Article 148 §§ 1 (2) and 2 of the Code, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161 of the Code, as in force since March 2000). In 2005 an unofficial collection of the caselaw of the Sofia District Court and the Sofia City Court in defamation cases was published (Обида и клевета в практиката на Софийския районен съд, Сиби, 2005 г.); it reported the case against the applicant at p. 400.

Article 78a of the Code, as in force at the relevant time, allowed the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from BGN 500 to BGN 1,000 – if (i) the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not been previously convicted of a publicly prosecutable offence and their criminal liability had not been previously replaced by an administrative punishment, and (iii) the damage caused by the criminal act had been made good. Along with the fine the court could impose occupational disqualification of up to three years.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in 1944 and lives in Malmö.

Since 1992 the applicant has been registered with the Employment Service (Arbetsförmedlingen) in Malmö and, since 2001, she has been taking part in different programmes provided by it. One of these programmes, called activity guarantee (aktivitetsgaranti), was a programme for persons who were, or who were at a risk of becoming, unemployed for a long period as well as for groups of persons who often had difficulties in finding a job. The purpose of the programme was to give the participants greater opportunities to find a job and it involved different activities such as short term education and the possibility to try different kinds of work. Each person who participated in the programme had a personal supervisor from the Employment Service and together they were supposed to set up a plan for the activities in which the participant was taking part. The participant was obliged to attend meetings and to meet his or her supervisor on a regular basis, and he or she also had an obligation to apply for suitable jobs which were advertised through the Employment Service.

On 4 July 2005 the Employment Service (apparently on delegation from the County Labour Board (Länsarbetsnämnden)) decided to withdraw its approval for the applicant to take part in the programme in which she was participating. The decision was taken in accordance with Section 37(a) of the Ordinance on Labour Market Policy Programmes (förordningen om arbetsmarknadspolitiska program, SFS 2000:634; hereafter "the 2000 Ordinance"). According to the Employment Service, the applicant had not been acting in a proper manner in relation to the demands laid upon her. The decision was taken on the basis of a report drawn up by the Employment Service. The report stated that the applicant had been called to attend information meetings on several occasions but that she had either announced that she was not able to attend or she had simply not attended. It also stated that the applicant, at an information meeting, had made statements that led to a job interview being cancelled.

When the applicant’s permission to participate in the programme was revoked, her subsistence support in the form of activity support (see § 18 below) was also revoked, leaving her without any income. According to the applicant this forced her to pay for living expenses out of her savings for nine months and to take 25% early retirement in September 2005.

On 21 July 2005 the applicant appealed against the decision of the Employment Service to the National Labour Market Board (Arbetsmark-nadsstyrelsen –hereafter “the Board”). She claimed that there were several statements in the report which were not true. For instance, she had been ill and hospitalised and therefore had not been able to attend certain meetings and she had informed the Employment Service about the situation. She also alleged that a note in the report which stated that on one occasion she had not attended a meeting was not true. Moreover, she claimed that, at the aforementioned information meeting, she had told an official of the Employment Service that she felt she was not suited for the job in question. Thereafter, the official had told her that she could leave.

On 29 March 2006 the Board decided to reject the appeal. It found that the applicant had, on several occasions in August and September 2004, announced that she was not able to attend certain meetings; on one occasion because she had planned to go on vacation. The Board took into account the possibilities to adapt the kind of work the applicant was offered, and the fact that she had not proved her medical problems or shown that they were of a permanent nature, and found that she had not done everything in her power to get a job. Therefore, the Board concluded that there were grounds to withdraw her entitlement to participate in the programme. Consequently, the appeal was rejected.

In the Board’s decision, it was expressly stated that there was no possibility in accordance with Section 39 of the 2000 Ordinance to appeal against the decision.

On 6 April 2006 the applicant wrote a letter to the Board, expressing her dissatisfaction with its decision. In the letter she referred, inter alia, to the fact that the Board in its decision had noted that no appeal lay against the decision and asked how she could obtain redress.

On 11 September 2006 the applicant submitted a complaint to the Chancellor of Justice (Justitiekanslern) where she complained, inter alia, about the authorities’ decisions and their handling of her case. She requested damages, but did not claim that there had been a breach of her rights under Article 6 of the Convention. This complaint seems still to be pending before the Chancellor of Justice.

A person who is unemployed may be entitled to subsistence support through the unemployment insurance. The main regulations in this area are given in the Unemployment Insurance Act (lagen om arbetslöshets-försäkring, SFS 1997:238; hereafter "the 1997 Act") and the Unemployment Funds Act (lagen om arbetslöshetskassor, SFS 1997:239). Unemployment benefits are financed through membership contributions made by the members of the unemployment insurance funds and State funding. A person who is not a member of an unemployment insurance fund can still receive some benefit, a so-called basic insurance. Benefits are paid to a person who is unemployed and has fulfilled a qualifying period of employment, that is he or she has worked a certain number of months before becoming unemployed, and who fulfils certain basic qualifying conditions, for example, he or she must actively be looking for work. At the relevant time benefits were provided for a limited number of days. After that, a new qualifying period of employment had to be completed in order to qualify for a new period of benefits.

According to Section 45(a) of the 1997 Act, the benefits will be reduced for a certain period if the beneficiary, without acceptable reasons, rejects suitable work or if he or she, without having expressly rejected the work, by his or her actions causes employment not to be realised. The third time this happens the beneficiary will be disqualified from receiving benefits. According to Section 46, the same will happen if a beneficiary without acceptable reasons rejects an assignment to a labour market policy programme (arbetsmarknadspolitiskt program). Decisions regarding the right to the benefits regulated in the 1997 Act can be appealed against to the administrative courts.

The activity guarantee scheme was one of several different labour market policy programmes. The scheme ceased to be in force on 2 July 2007. According to Sections 8 and 21 of the 2000 Ordinance, a person could (the word “may” (får) was used in the Ordinance) be assigned to the activity guarantee scheme if he or she was at least 20 years old, was or was at risk of becoming unemployed for a long time and was searching for work through the public employment service. Section 6 of the 2000 Ordinance stated that an assignment to the programme had to be motivated in terms of labour market policy and, thus, an assignment could only be made if it appeared appropriate both for the individual and from an overall labour market policy perspective. Moreover, Section 7 stated that an assignment to the activity guarantee scheme would apply for as long as it was justified in terms of labour market policy.

A person who entered into the activity guarantee scheme would no longer be entitled to unemployment benefits. His or her subsistence would instead be paid according to the provisions in the Ordinance on Activity Support (förordning om aktivitetsstöd, SFS 1996:100). Section 23 of the 1997 Act stated that a person who entered into the activity guarantee scheme would lose his or her remaining days of unemployment benefits. In the preparatory works preceding the amendment of Section 23 of the 1997 Act the Government stated that it was not necessary to allow people who left the activity guarantee scheme a possibility to use their remaining days of unemployment benefits, “since the system around the activity guarantee scheme means that no one should have to leave the activity guarantee without having his or her support secured” (Government Bill 2002/03:44 p. 54).

The Ordinance on Activity Support stated that a person who took part in, inter alia, the activity guarantee scheme was entitled to economic support. According to Section 5 of the Ordinance, a person who was or would have been entitled to unemployment benefits or who had received unemployment benefits for the longest period for which benefits could be provided, would be given activity support equivalent to the unemployment benefits he or she would have received under the 1997 Act. A person who was not entitled to benefits as described above would still be given a specific amount per day in activity support. When a person who had been taking part in a programme such as the activity guarantee ceased to be part of it, he or she was no longer entitled to the activity support.

Section 37(a) of the 2000 Ordinance stated that an assignment to the activity guarantee scheme would be revoked if a person assigned to it refused an offer of suitable work or another measure under the guarantee scheme without an acceptable reason. An assignment to the activity guarantee scheme would also be revoked if the individual did not act in a proper manner or otherwise disrupted the activities. Moreover, an assignment could be revoked if there were other special reasons to do so.

According to Section 37(b) of the 2000 Ordinance, if an assignment to the activity guarantee scheme was revoked because the individual had refused an offer of suitable work or another measure under the guarantee scheme, without an acceptable reason, the individual would (the word “shall” (skall) was used in the Ordinance) be reassigned to the activity guarantee scheme after a suspension of 45 days, if certain basic requirements were met. In the Government Bill which preceded the introduction of this provision, the Government noted that the consequences for those who had their assignment to the activity guarantee scheme revoked would be far-reaching unless they had fulfilled a new qualifying period of employment. The Government also observed that the activity guarantee scheme had the character of a last economic protection among the labour market policy measures for those who were, or were at a risk of becoming, unemployed for a long period. Thereafter the Government stated: “The person applying should therefore in principle have a right to participate in the activity guarantee until he or she finds a solution for his or her unemployment situation, on condition that he or she in an active way contributes to such a solution. ... A person who has had his or her assignment to the activity guarantee revoked on the ground that he or she has refused an offer of suitable work or another measure under the guarantee scheme, shall therefore be offered a new assignment to the guarantee.” (Government Bill 2002/03:44 p. 66)

Decisions regarding the revocation of an assignment to a labour market policy programme, including the activity guarantee scheme, were taken by the County Labour Board. Appeals against the County Labour Board’s decision could be made to the National Labour Market Board. According to Section 39 of the 2000 Ordinance, no appeal lay against the National Labour Market Board’s decisions.

In connection with a reorganisation of the Labour Market Administration into the Employment Service, the issue of whether decisions regarding labour market policy programmes should be subject to appeal was considered by the Government. It first stated that there was a right to be assigned to the labour market policy measure called “new start jobs” (nystartjobb) and then stated, inter alia, the following: “In the case of other labour market policy measures and financial compensation, assignment decisions to them depend to a great extent on the situation in the labour market. There is no right to receive such a measure and there is no right to retain it either. This means that the decisions to be taken by the new agency in these matters, including the revocation of a measure, do not need to be examined by a court. Nor are the decisions suited to an examination by a court.” (Government Bill 2006/07:89 p 79)

The handling of matters in the Swedish public administration is regulated by the Administrative Procedure Act (förvaltningslagen, SFS 1986:223; hereafter "the 1986 Act"). Section 3 § 1, of the 1986 Act states that the provisions in the Act are subsidiary if they differ from the provisions in any other act or ordinance. According to Section 22, a decision may be appealed against by any person whom the decision concerns, provided the decision affects him or her adversely and an appeal against the decision is permitted. Section 22(a) states that appeals are to be made to the administrative courts. The preparatory works (Government Bill 1997/98:101 pp 59 and 112) state that one of the purposes of Section 22(a) is to assign a competent court when a prohibition to appeal against a decision has to be set aside because it would be in violation of the Convention.

On 1 July 2006 a new second paragraph was added to Section 3 of the 1986 Act which states that the provisions on appeal according to the Act should always apply if it is necessary in order to provide for everyone’s right to a fair trial in the determination of their civil rights or obligations as laid down in Article 6 § 1 of the Convention. According to the preparatory works (Government Bill 2005/06:56 p 10), one of the reasons for amending the 1986 Act was to make it clear that the 1986 Act’s provisions on appeal applied regardless of what was stated in other acts or provisions, if this was necessary in order to satisfy the right to access to court in accordance with the Convention.

Section 21 § 2 of the 1986 Act states that an authority has an obligation to inform a party about how to appeal against all decisions that affect the party adversely, if the decision can be appealed against.

In a decision of 22 November 1994 (NJA 1994 p. 657) the Swedish Supreme Court (Högsta domstolen) found that a dispute over agricultural subsidies concerned a civil right in the sense of Article 6 of the Convention and found that a trial before a court should be allowed. Therefore, the court set aside the prohibition to appeal against the authority’s decision. Similarly, the Supreme Administrative Court (Regeringsrätten) has set aside prohibitions to appeal against different authorities’ decisions, when the cases concerned civil rights and obligations (see, for example, decision of 25 November 1997 in RÅ 1997 ref. 65 and decision of 30 November 2001 in RÅ 2001 ref. 56).

It follows from Chapter 3, Section 2 of the Tort Liability Act (Skadeståndslagen, SFS 1972:207) that the State is liable to pay compensation for, inter alia, financial loss caused by a wrongful act or omission in connection with the exercise of public authority. From Chapter 3, Section 3 of the Act it follows that, under certain circumstances, the State is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority.

In a judgment of 9 June 2005 (NJA 2005 p. 462), the Supreme Court found that an individual had a right to bring a civil action against the State before the national courts on the ground that there had been a violation of Article 6 § 1 of the Convention because a criminal case against the individual had not been concluded within a reasonable time. The Supreme Court has subsequently, in a judgment on 21 September 2007 (NJA 2007 p. 584), found that individuals have a right to bring civil suits against the State for violations against any Articles of the Convention when the State, according to the Convention, has an obligation to pay damages for the violation and such obligation cannot be based on national legislation.

Anyone who wishes to claim compensation from the State for financial loss, which he or she considers to have been caused by a wrongful decision taken by a court or an administrative State authority, can proceed in two different ways: He or she may either petition the Chancellor of Justice in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, SFS 1995:1301), or bring a civil action against the State in the ordinary courts. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts.


The applicant, Mr Giuliano Sinkovič, is a Slovenian national who was born in 1949 and lives in Piran. He was represented before the Court by Mr E. Dokič, a lawyer practising in Piran.

In 1992 a company, HIT, published in a local newspaper an invitation to submit proposals for the name of a new casino. A reward of 100,000 Slovenian tolars (approximately 415 euros) was promised to the person whose proposal was chosen.

The applicant sent a list of 107 proposals in the prescribed period.

On 21 August 1992 HIT informed the applicant about the two chosen proposals, neither of which had been picked out of the applicant’s list.

It appears that the name that the new casino was finally given was not one of the chosen ones, but one from the applicant’s list.

Therefore, in 1994 the applicant, relying on the provisions of the Copyright and Related Rights Act (Zakon o avtorski in sorodnih pravicah), requested the Ljubljana District Court to disallow further use of the casino’s name and to order HIT to remove all visible signs containing it. The company would have been exempted from this obligation if it had paid the applicant the amount of 20,000,000 Slovenian tolars (approximately 83,330 euros).

On 25 September 2000 the court rejected the applicant’s claim. It held that the term from the applicant’s list, finally used to name the casino, did not constitute the work of an author and was therefore not protected by copyright. It concluded that the applicant could have claimed the promised reward (see above), but had failed to do so.

On an unspecified date the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani).

On 20 December 2000 the court dismissed the applicant’s appeal.

On 22 March 2001 the applicant, not represented by a lawyer, lodged a constitutional appeal.

On 18 December 2002 the Constitutional Court (Ustavno sodišče) dismissed the applicant’s appeal. The applicant did not indicate the date on which this decision was served on him.

The applicant dated his first letter to the Court 23 June 2003. The applicant posted it, as a registered letter, at 7.05 p.m. on 24 June 2003 at the post office in Piran.

On 27 July 2004 the applicant lodged a duly completed application form, nearly a year after receiving the Court’s letter advising him to do so.

Section 25 - Just satisfaction for damage sustained prior to implementation of this Act

“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...


The applicant, Mr Klaus Bader, is a German national who was born in 1956 and lives in Ravensburg in Germany. He is represented before the Court by Mr A. Poppe, a lawyer practising in Berlin. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice.

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

The applicant is the father of the child R., born out of wedlock on 19 January 1987. The applicant acknowledged paternity immediately after his son’s birth.

The applicant and the child’s mother (Ms K.) separated permanently in 1989. The last contact between the applicant and his son to which Ms K. gave her consent took place in May 1990. Following this, Ms K. denied the applicant any access to his son. The applicant’s frequent requests to the family courts to be granted access rights remained unsuccessful.

On 7 December 1990 Ms K. married Mr K.

On 10 April 1992 Mr and Ms K. applied to adopt the applicant’s son.

By order of 20 May 1992 the Ravensburg District Court (Amtsgericht) granted the adoption.

On 7 March 1995, following the applicant’s complaint, the Federal Constitutional Court (Bundesverfassungsgericht) lifted the binding effect of the adoption order of 20 May 1992 insofar as it prevented a fresh consideration of the case (Aufhebung der Rechtskraft) and remitted the case to the District Court. The Constitutional Court found that the legal provision permitting adoption of a child by his mother and stepfather without the natural father’s consent and without taking into account the latter’s interests in the maintenance of a parental relationship violated his rights to the enjoyment of his family life as guaranteed by Article 6 § 2 sentence 1 of the Basic Law (Grundgesetz). Accordingly, the legislator was ordered to amend the legal provisions.

On 1 July 1998 new legislation entered into force, providing that a minor’s adoption depended on both parents’ consent. However, if the mother of a child born out of wedlock exercised sole custody, the court had to substitute the natural father’s consent if the child would suffer a disproportionate disadvantage if not adopted (section 1748 § 4 of the amended Civil Code, see relevant domestic law below).

On 1 August 1998 the counsel representing Mr and Ms K. filed a request to substitute the applicant’s consent to the child’s adoption by Mr K.

On 31 January 2001 the Ravensburg District Court, having heard the applicant, Mr and Ms K. and the child as well as expert opinion, substituted the applicant’s consent to the adoption pursuant to Article 1748 § 4 of the amended Civil Code. That court found that the child’s interest in being adopted by his stepfather outweighed the applicant’s interest in the maintenance of the parental bonds by far. It noted that the child R. had expressed that he felt as a full member of the K. family and that he strongly wished to be legally accepted as Mr K.’s child. It further noted that the K. family had been considerably disturbed during the previous ten years by numerous confrontations with the applicant. Furthermore, the court-appointed expert had clearly stated that the adoption would be in the child’s interest. With regard to the applicant’s interests, the District Court noted that the adoption would lead to a severing of the parental bonds. It took however into consideration that the child had lived for more than eleven years with the K. family and that no father-son relationship existed between the applicant and the child. Finally, the District Court considered that the adoption might put an obstacle to a later reconciliation between the applicant and the child, but considered that this would not prevent the child from getting in touch with the applicant if he later on might wish to do so.

On 16 March 2001 the Regional Court rejected the applicant’s complaint against the District Court’s decision.

On 22 March 2001 the applicant lodged a complaint against the decision of the Regional Court of 16 March 2001 with the Federal Constitutional Court and a further complaint against that same decision with the Stuttgart Court of Appeal (Oberlandesgericht).

On 27 April 2001 the applicant lodged his application with the Court.

On 9 May 2001 the Federal Constitutional Court rejected the applicant’s constitutional complaint as inadmissible.

On 17 July 2001 the Court of Appeal rejected the applicant’s complaint. That court found that the impugned decisions did not violate the applicant’s rights under the Basic Law and under the Convention. In so far as the requirements of adoption in the case of an unmarried father who had never held (joint) custody and had never “had responsibility for the child” were less than in the case of other parents, this distinction appeared factually justified in the circumstances of life that were typically found in this case. Furthermore, the lower courts had duly considered the applicant’s interests. The Court of Appeal added that the applicant’s long lasting fight for his rights had forced the child and his new family into the defensive, which made it necessary in the child’s interest to permit the adoption. It further noted that the last contact between the applicant and the child, which had taken place with the mother’s consent, was in 1990 – when the child was merely three years old – and that the applicant’s further endeavours to get into touch had contributed to the child’s aversions. The Court of Appeal considered that the length of the proceedings – which could not be attributed to the courts – had put the child under particular pressure and had thus weakened the applicant’s position.

On 31 August 2001 the District Court issued an order confirming the child’s adoption by Mr K. The District Court noted that the child had fully integrated into the K. family. According to the courts’ previous findings, the child would suffer a disproportionate disadvantage if not adopted. The District Court found that the other legal prerequisites were met and, in particular, that the child had firmly expressed that he wished to be adopted.

On 19 October 2001 the Regional Court rejected the applicant’s complaint as being inadmissible.

On 6 August 2001 the applicant filed a constitutional complaint against the Court of Appeal’s decision of 17 July 2001, the Regional Court’s decision of 16 March 2001 and the District Court’s decision of 31 January 2001.

On 17 September 2001 the applicant lodged a constitutional complaint against the District Court’s decision of 31 August 2001. He alleged that the impugned decisions and the legal provisions they were based upon violated his right to the enjoyment of his family life under Article 6 of the Basic Law and under Article 8 of the Convention. He further complained about a violation of his right to equal treatment as guaranteed by Article 3 of the Basic Law.

By letter of 12 February 2004 the Federal Constitutional Court informed the applicant that it had communicated his joint complaints to the Government and to several other interested parties for comments. By letter of 28 February 2005 the court informed the applicant that – due to the high workload of the section – it could not be predicted when a decision on the admissibility of his complaint could be given.

On 29 November 2005 the Federal Constitutional Court, sitting as a panel of three judges, quashed the decisions of the Court of Appeal of 17 July 2001, of the Regional Court of 16 March 2001 and of the District Court of 31 January and 31 August 2001 and ordered the Land of Baden-Württemberg to reimburse the applicant the necessary expenses incurred by the proceedings before the Constitutional Court.

The Federal Constitutional Court found that the applicant’s case could be adjudicated by a chamber of three judges as the questions raised by the applicant were no longer of fundamental importance.

The court noted in particular that the Federal Court of Justice, in a decision given on 23 March 2005 (see relevant domestic law and practice, below), had issued valid guidelines which assured that section 1748 § 4 of the Civil Code was interpreted in accordance with the Basic Law and that a father who had never held parental authority was not discriminated against as compared to a father who had.

The Constitutional Court emphasized the fact that the adoption severed all legal bonds to the natural father, including alimony claims and rights of succession. Furthermore, it was generally not to be regarded as being in the child’s best interest to exclude access rights of the natural parent. Summing up, the Federal Constitutional Court found that a child’s adoption by his or her stepfather could not generally be regarded as being in the child’s best interest.

Turning to the applicant’s case, the Federal Constitutional Court found that the impugned decisions violated the applicant’s right to equal treatment under Article 3 § 1 of the Basic Law, as they discriminated against the applicant when compared to a father who had previously held parental authority. It noted, in particular, that the lower courts had failed to take into account the applicant’s submissions that he had lived for a certain period of time with the child and had thus assumed his responsibility as a parent. The lower courts had further failed to examine the reasons which had prevented the applicant from maintaining a father-child relationship. As could be established from the case-file, the child’s mother had prevented the applicant’s access to the child after meeting her future husband. The Federal Constitutional Court finally found that the applicant’s later attempts to get in touch with the child should not be held against him.

Having regard to these findings, the Federal Constitutional Court did not find it necessary to examine the applicant’s further complaints. As a result of this judgment, the proceedings concerning the adoption of the applicant’s son were terminated.

On 14 January and 18 February 2003 the District Court ordered the applicant’s arrest on the basis of section 901 of the Code of Civil Procedure, because he had refused to reimburse court fees incurred by the adoption proceedings and in order to compel him to render an affidavit (eidesstattliche Versicherung).

On 24 May 2004 the Federal Constitutional Court refused to entertain the applicant’s complaint against the arrest orders.

The applicant was arrested on 28 May 2004 and released following court order of 30 July 2004.

Article 6 of the Basic Law (Grundgesetz) reads as follows:

“(1) Marriage and the family shall enjoy the special protection of the state.

(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty...”

The statutory provisions on adoption are to be found in the Civil Code (Bürgerliches Gesetzbuch).

Section 1747 (2) of that law originally provided that a child born out of wedlock could be adopted by its mother or stepfather without the natural father’s consent.

On 7 March 1995 the Federal Constitutional Court (Bundesverfassungsgericht) ruled that this provision violated the natural father’s rights to the enjoyment of his family life as guaranteed by Article 6 § 2 (1) of the Basic Law insofar as it did not require the natural father’s consent and did not allow to weigh the latter’s interests.

On 1 July 1998 the Act Concerning the Reform of Childhood Rights (Gesetz zur Reform des Kindschaftsrechts) entered into force, which amended the relevant provisions on child adoption as follows:

Under section 1741 § 1 the adoption of a child is permissible if it is in the interest of the child’s well-being and if it can be expected that parent-child relations will develop between the person applying for the permission to adopt and the child.

An adoption may only take place with the natural parents’ consent (section 1747 §1).

Section 1748, insofar as relevant, reads as follows:

Section 1748 substitution of a parent’s consent

“(1) Upon the child’s request, the court has to substitute its consent for that of a parent, if that parent has grossly and persistently violated his or her duties toward the child or if he has demonstrated that the child is indifferent to him, and if the child would suffer a disproportionate disadvantage in the absence of an adoption...

(3) The court can further substitute its consent for that of a parent who is...permanently unable to care for the child if the child, in the absence of an adoption, could not be raised within a family, which would seriously endanger its development.

(4) In the cases of section § 1626a § 2 the court has to substitute its consent for the father’s if the child would suffer a disproportionate disadvantage in the absence of an adoption. “

Section 1626a § 2 provides that the mother of a child born out of wedlock exercises sole custody if no other agreement has been reached between the parents.

On 23 March 2005 the Federal Court of Justice (Bundesgerichtshof) in separate proceedings which did not concern the applicant’s case, laid down the following guiding principle for the interpretation of section 1748 § 4 of the Civil Code:

“A disproportionate disadvantage in the absence of an adoption can only be assumed if the adoption would be so beneficial for the child that a parent who reasonably cared for the child’s well-being would not insist on the maintenance of parental ties.”

(“Das Unterbleiben der Adoption gereicht ... nur dann dem Kind zu unverhältnismäßigen Nachteil, wenn die Adoption einen so erheblichen Vorteil für das Kind bieten würde, daß ein sich verständig um sein Kind sorgender Elternteil auf der Erhaltung des Verwandschaftsbandes nicht bestehen würde.”)

The Federal Court of Justice further emphasised that it was not, as a general rule, in the child’s interest if the adoption was aimed at excluding the natural father from exercising access rights. It further had to be considered that the adoption generally did not alter the child’s opportunity to live within the new family, and only gave a legal framework to a factually existing situation. With regard to the father, one had to consider whether there existed a real parent-child-relationship or, if not, which reasons had prevented the father from building up such a relationship.

The Federal Court of Justice concluded that section 1748 § 4, if interpreted in accordance with these guidelines, respected the natural father’s rights under the Basic Law.


The applicant, Leif Lindgren, is a Swedish national, who was born in 1962 and lives in Färjestaden. He was represented before the Court by Mr S. Larsson, a lawyer practising in Eksjö. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs.

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

On 7 February 1997 S. was attacked several times outside his home by a person using a knife or a bayonet.

S. was heard by the police on at least three occasions in February and early March 1997. Thereafter, on 6 March, defence counsel was appointed for the applicant. A further police interview with S. was held on 18 March. According to the applicant, he and his counsel were not informed of this interview or invited to attend it.

The applicant was subsequently charged with attempted murder of S. The applicant and S. knew each other, having served time together at the same prison and having met thereafter on a couple of occasions at the home of S.

On 26 March 1997 the applicant received a copy of the records of the preliminary investigation. Those records state that the applicant had no objection or comments to the documentation of the investigation.

On 8 April, 27 May and 2 June 1997 the District Court (tingsrätten) of Kalmar heard the case. On 8 April S. came to the court’s waiting room but then left. The prosecutor stated at the hearing that he had talked to S. in the waiting room who had said that he had nothing to add but that he stood by the information he had given to the police. The court ordered that S. be fetched by the police, proceeded with the hearing but later discontinued it as S. had not been found. On 27 May the District Court adjourned the case, noting that the police had not been able to enforce the court’s order that S. be brought to the hearing. On 2 June S. again came to the waiting room but left before the hearing started. The District Court then decided to continue the hearing of the case in the absence of S. It allowed that his statements made during the preliminary investigation be read out.

By a judgment of 6 June 1997 the District Court convicted the applicant of aggravated assault of S. and attempted murder of another person who had been attacked on a different occasion. The applicant was sentenced to five years in prison.

Both the applicant and the public prosecutor appealed to the Göta Court of Appeal (Göta hovrätt). The prosecutor requested that S. be heard in person before the appellate court or, alternatively – in the event that he would not appear –, that his statements to the police be admitted as evidence. The applicant objected to the alternative request, stating, inter alia, that it would violate the applicant’s rights under the Convention.

On 22 July 1997 the Court of Appeal decided to refuse the prosecutor’s alternative request.

The Court of Appeal heard the case on 31 July, 1 August and 7 August 1997. Following S.’s non-appearance on the first day, the court ordered that he be brought to the court by the police. The police were not able to enforce the order in time for the second day. However, on 7 August S., serving a prison sentence at the time, was taken to the court by the transportation service of the National Prison and Probation Administration (Kriminal-vårdsstyrelsen). At the hearing S. refused to give evidence except for stating that it was not the applicant who had attacked him and that he had not previously named the applicant as the perpetrator. The court then decided to allow as evidence the statements made by S. during the police investigation.

By a judgment of 22 August 1997 the Court of Appeal convicted the applicant of attempted murder also in regard to the attack on S. and sentenced him to imprisonment for a total of eight years for the two crimes. With respect to the statements made in the case by S. the court stated, inter alia, the following:

“During the police investigation [S.] first stated that he was attacked by a man, who was accompanied by another man, and then that the attacker came in the company of a woman. ... During the preliminary investigation it also occurred, according to the testimony made by police officer [D.], that [S.] was asked whether the right person was detained in the case, and then nodded affirmatively and said ‘you know that, of course’.

[S.] was summoned twice to the District Court’s main hearing. On both occasions he came to the court’s waiting room but disappeared before the hearing started. During the hearing before the Court of Appeal, [S.] showed signs of being deeply upset. He acted as could be expected from a person, who is afraid of reprisals. ...

The fact that [S.] has not been heard by the District Court and mostly refused to give evidence before the Court of Appeal raises the question of the application of Article 6 of [the Convention] – the right to a fair trial and the right to examine or have examined witnesses ... . The European Court of Human Rights has in a number of judgments dealt with this issue (see, inter alia, Unterpertinger ..., where the Convention was found to have been violated, and Asch ..., where no such violation was found). Chapter 36, section 16, subsection 2 of the Code of Judicial Procedure (Rättegångsbalken) shall be interpreted restrictively in the light of Article 6 and the European Court’s application thereof ... .

The Court of Appeal notes at the outset that the presentation of material from the preliminary investigation in itself cannot be considered as a violation of Article 6. According to the above-mentioned judgments, it seems that the decisive point as to whether there has been a violation is whether the conviction has been based primarily on this material. In order for the Court of Appeal to be able to draw a conclusion on this point, it is first necessary to examine the evidence in the case.

There is no doubt that [S.] has sustained the injuries alleged by the prosecutor, nor as to how this happened. As to the identity of the perpetrator, [S.] has avoided to directly identify [the applicant]. Therefore, a conviction cannot be based on [S.’s] statements alone. The prosecutor has invoked certain supplementary evidence. In addition to this evidence, it is of importance that [the applicant] has not invoked any form of alibi evidence. The Court of Appeal is of the opinion therefore that the statements made by [S.] during the preliminary investigation are not the primary evidence in the sense laid down by the European Court. Article 6 of the Convention cannot therefore be considered as prohibiting this evidence from being considered by the Court of Appeal.

On the basis of the available material, the Court of Appeal makes the following assessment. According to what [S.] has stated, the perpetrator visited him on 5 February 1997. This information should be considered in conjunction with the statement of [witness 1] that [witness 1] the same day met [S.] together with a person whom [witness 1] has identified as [the applicant], and then lends support to the conclusion that [the applicant] is the perpetrator. Although the identification of [S.] made by [witness 2] at a photo line-up does not have any real value as evidence, her observation of a man outside the home of [the applicant] on 7 February 1997 confirms what [S.] has stated regarding his visit to the home of the perpetrator. The observations made by [witness 3] concerning the perpetrator’s looks do also, to some extent, support the conclusion that [the applicant] is the perpetrator. The statements made by [S.] during the preliminary investigation have thus been verified on various points. This fact together with what has otherwise been revealed in the case is highly compromising for [the applicant]. It is apparent to the Court of Appeal that [S.] throughout the investigation and the hearing of the case has been afraid of [the applicant]. The fact that [S.] during the oral hearing before the Court of Appeal denied that [the applicant] was the perpetrator can therefore be disregarded. The Court of Appeal finds it proven beyond reasonable doubt, as did the District Court, that [the applicant] is identical with the perpetrator.”

On 29 September 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.

Chapter 35, section 4 of the Code of Judicial Procedure provides:

“A statement made in writing on the occasion of already opened or imminent legal proceedings or a written record of a statement made on the occasion of such proceedings to the prosecutor or the police or otherwise out of court may be invoked as evidence in the proceedings only

if this is specifically prescribed,

if the person who made the statement cannot be examined at or outside the main hearing in the case or otherwise before the court, or

if there are particular reasons, taking into account the costs and inconvenience that an examination at or outside the main hearing may entail, the possible gain of such an examination, the significance of the statement and other circumstances.

The rules on statements in writing or in written records in the first paragraph apply also in regard to a phonetic or similar record of a statement.”

Chapter 36, section 16, subsection 2 reads:

“During the hearing of a witness, the witness’s prior statement before a court or before a prosecutor or the police may be presented only when the witness’s testimony differs from what he has previously stated or when the witness declares that he cannot or will not speak.”

The latter provision applies also to a hearing of an injured party, according to chapter 37, section 3, subsection 1.


Violation of Article 6+6-3-e - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-e - Free assistance of interpreter);Pecuniary damage - claim dismissed

The applicant formerly managed “The Godfather Restaurant” in Newcastle upon Tyne, which was operated by a company of which the applicant was a director. Following an inquiry by the Inland Revenue and Customs and Excise in 1988 into the restaurant and the applicant, the company went into liquidation and ownership of the lease of the restaurant was transferred to a new company controlled by the applicant. However, the restaurant was run by a succession of management companies under short-term management contracts. The various companies were all registered for Value Added Tax (“VAT”) purposes but failed to make any VAT payments or returns to the Customs and Excise authorities. In addition, wages were paid to employees in cash and were not declared to the Inland Revenue. The resulting loss of VAT was assessed at approximately 460,000 pounds sterling (“GBP”) and the accumulated losses in respect of Income Tax and National Insurance contributions were assessed at GBP 360,000. In September 1994 the applicant was declared bankrupt as a result of civil proceedings brought by the Inland Revenue to recover unpaid tax.

On 25 November 1994 the applicant was arrested and on 26 November 1994 charged with various offences of fraudulently evading VAT. He was remanded in custody. His applications for bail on 12 April 1995, 13 June 1995 and 7 December 1995 were refused.

The applicant was granted legal aid on 1 March 1995. The legal aid order covered both the committal hearings and the actual trial. The applicant was represented throughout the proceedings by a Queen's Counsel (“QC”), who was also a Recorder, a very experienced junior counsel and two different firms of solicitors.

On 3 March 1995 the Newcastle upon Tyne Magistrates' Court committed the applicant for trial before the Crown Court at Newcastle.

Preliminary hearings were held on 10 April 1995 and 2 June 1995. At the hearing of 16 June 1995 the applicant was indicted with two others on two counts of being knowingly concerned in the fraudulent evasion of VAT (between 22 May 1989 and 25 July 1994) and of taking steps with a view to the fraudulent evasion of VAT (between 25 July 1994 and 24 November 1994). The applicant pleaded not guilty.

At none of these hearings did either the applicant or his legal team request the provision of an interpreter, nor suggest to the court that the applicant required the services of an interpreter.

At the trial on 4 January 1996, the applicant, on the advice of counsel, changed his plea to guilty. He was also indicted on another count of cheating the public revenue and pleaded guilty to that charge too. The court was informed that the applicant disagreed on the quantum of the sums which formed the basis of the plea with the consequence that further discussion was needed on this matter with the prosecution. Defence counsel informed the court for the first time that the applicant had:

“considerable difficulty in communicating, save in very simple concepts, in English. Now for the purpose of consultation we can get by, but one of the difficulties is that his English is very poor and his Italian is very Southern”.

Counsel invited the court to direct that an interpreter be present at the subsequent hearing, given that at either a hearing or indeed a plea:

“... certain complicated matters might well have to be put before the court, and which he should understand as they are being put”.

The court granted this request and adjourned for reports to be written and for the parties to reach agreement on the issue of quantum, after convicting the applicant of all charges.

At the following hearing concerning sentence held on 26 January 1996, the court noted that no professional interpreter was present despite its earlier direction. The applicant's counsel stated that:

“... it appears that no arrangements have been made, in which case I think that we shall have to make do and mend. It may require an occasional adjournment if something needs to be explained. It has been discussed extensively and obviously already with the [applicant] and, although he may not follow the detail of the proceedings, he certainly knows the outline of what the prosecution will say. I imagine that their case will very much follow the summary, and he knows the burden of what I intend to say.”

The trial judge asked whether anyone in court who knew the applicant was fluent in both English and Italian and could provide interpretation for the applicant. The applicant's counsel, without consulting his client, pointed out that the applicant's brother was present, and the court agreed to make use of him, if need be. The applicant's brother was never requested to translate any statement during the course of the hearing.

The applicant was sentenced to a total of four years' imprisonment and disqualified from being a company director for ten years.

On 14 May 1996 the applicant applied to the Court of Appeal Criminal Division seeking leave to appeal against sentence. In his application, the applicant was represented by the same legal team that had defended him at trial. In a letter to the Court of Appeal, the applicant stated that he had been sentenced on the basis, which was incorrect, that he had pleaded guilty to frauds totalling GBP 800,000 and that the real amount of the fraud was GBP 140,000. The applicant did not maintain in his application that he had been unable to understand the proceedings at the trial or to communicate effectively in court; nor did he allege in his application that he should have been provided with the services of an interpreter.

Leave to appeal was refused by the Single Judge on 3 May 1996 and by the full Court of Appeal on 15 July 1996.

On 2 September 1996 the applicant sought advice from the President of the Law Society on what action to take against his defence lawyers but did not receive any reply.

On 3 September 1996 the applicant wrote to the Home Secretary, admitting that he had not declared GBP 2,000 per week for staff wages due to the recession, and claiming that the real amount of the fraud was GBP 140,000 and not GBP 800,000. He further complained that his counsel had failed to secure him the services of an interpreter at the trial on 26 January 1996 and that this was of “paramount importance” for the purposes of the plea in mitigation. The applicant further observed that his QC had misled the trial court by stating that his brother would be able to act as a translator, when his brother was unable either to speak or write in English.

The Home Secretary forwarded the applicant's case to the Criminal Case Review Commission (“the Commission”). The applicant himself applied to the Commission, claiming inter alia that his lawyers should not have allowed him to plead guilty to the GBP 800,000 fraud, as he had only intended to accept guilt in respect of GBP 140,000. Furthermore, his lawyers had failed to ensure the presence of an interpreter both at conferences in preparation for the trial and in court. He maintained that his brother did not speak English well enough and that he had not understood the charges or the legal process. He complained about his counsel, who, he claimed, did not understand Italian but nevertheless did not insist on an interpreter being present at conferences; renounced the presence of a professional interpreter in court; did not understand the case; told him to plead guilty only at the trial, without explaining the consequences to him in detail and gave the court the wrong information that the applicant had accepted liability in respect of the total amount.

The Commission noted that it had interviewed the applicant via an Italian interpreter and that it was apparent from telephone conversations between the applicant and the Commission that he did not have a very good command of English. The Commission observed that the applicant's solicitor and counsel at trial did not accept that he lacked understanding either of the language or of the nature of the case against him. However, the Commission went on to note, inter alia, that

a) in the course of the proceedings the applicant's solicitor had stated in counsel's brief that the applicant “has a grasp of English but is not very easily understood. At times, he says he wants an interpreter”;

b) the trial judge had seen fit to order the presence of an interpreter;

c) on appeal, the applicant's junior counsel had informed the court that the applicant did not have much of a command of English;

d) the applicant's counsel told the Commission that he would have wanted an interpreter present had there been a trial on the basis of a not guilty plea.

The Commission accepted that the applicant would have been able to understand the generality of the prosecution case but expressed the view that an interpreter ought to have been present when the prosecution case was explained to the applicant by his own representatives, given the complex nature of the evidence. Furthermore, he should have had the benefit of an interpreter when it came to considering the matter of changing his plea to guilty.

The Commission also accepted that the applicant's brother was not an adequate interpreter, but considered that the lack of an interpreter at the trial was “of much less significance than it was at the earlier stage”. Further, the Commission found that too little time had been spent by the applicant's lawyers explaining the case to him.

The Commission concluded that there were grounds for finding that the plea was uninformed in that the applicant had not fully understood the nature of the case to which he was pleading, partly because of his inadequate understanding of the language, and because of the inadequate explanation of the case given to him by his legal representatives.

However, the Commission noted that the Court of Appeal no longer had the power to allow an appeal against conviction if it did not think the conviction was unsafe but was dissatisfied in some way with the trial process, since there was no longer room for the separate notion of an “unsatisfactory” conviction. In the view of the Commission, whilst the applicant's conviction was arguably unsatisfactory, it could not be said to be unsafe. Since the Commission did not consider that there was a real possibility that, if referred to the Court of Appeal, the conviction and sentence would not be upheld, it decided not to make such reference.

In the meantime, the applicant was released from prison on licence on 25 November 1996.

The leading domestic authorities on the provision of a interpreter are the cases of Lee Kun ([1916] 11 CrAppR 293) and Kunnath v the State ([1993] 1 WLR 1315).

In Lee Kun Lord Reading CJ, speaking on behalf of the Court of Appeal, set out the following statement of principle (pp. 301-302):

“We have come to the conclusion that the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him, except when he or counsel on his behalf expresses a wish to dispense with the translation, and the judge thinks fit to permit the omission; the judge should not permit it unless he is of the opinion that by reason of what has passed before the trial, the accused substantially understands the evidence to be given and the case to be made against him at the trial. To follow this practice may be inconvenient in some cases, and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the accused's interest which has distinguished the administration of justice in our criminal courts, and therefore it is better to adopt it.”

Lord Reading's judgment in Lee Kun was reinforced in the more recent case of Kunnath v the State in 1993. Speaking on behalf of the Privy Counsel, Lord Jauncey stated:

“Their Lordships have no doubt that the course advocated by Lord Reading CJ in Rex v Lee Cunn is a highly desirable one and should be followed wherever a foreign defendant, not fully conversant with the language of the proceedings, is represented by counsel.”