Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant is a Greek national born in 1936 and currently resident in the United Kingdom.

On 23 February 1987 he submitted to the Prefecture of Athens an application for a disability pension under section 31 of Law no. 1543/85.

On the orders of the Prefecture an administrative inquiry was carried out by the Municipality of Moshato, which concluded on 15 December 1987 that the applicant was entitled to a pension because he had been tortured during the dictatorship and had suffered irreparable damage to his health as a result.

On 29 January 1988 the Health Committee of the Prefecture of Athens advised the General Accounting Office of the State (Geniko Logistirio tou Kratous) to grant the applicant a pension. The Health Committee considered that the applicant had been incarcerated because of his activities against the military dictatorship and had been tortured. As a result, his right hand was paralysed.

On 23 May 1988 the Pensions Regulatory Service (Ypiressia Kanonismou Syntaxeon) of the General Accounting Office rejected the applicant’s application on the ground that the conditions of section 31 of Law no. 1543/85 (see paragraph 19 below) were not fulfilled. The General Accounting Office considered that the applicant’s allegations were not proved by court decisions or public documents issued before 14 June 1984 and that the applicant had not been injured as a result either of his direct involvement in the struggle against the dictatorial regime or his opposition thereto. On 14 June 1988 the applicant appealed to the Audit Court (Elenktiko Synedrio).

The applicant’s appeal was heard by the Third Chamber of the Audit Court on 2 December 1988. It was rejected on 10 March 1989. The Third Chamber considered that the applicant’s allegations were not proven by a court decision or public document issued before 14 June 1984. It also found that the torturing of the applicant during the dictatorship had not resulted in an “injury” but in an “illness”. The law, however, provided for the award of a pension to persons who had been “injured” as a result of their opposition to the dictatorship.

On 17 April 1989 the applicant lodged an appeal on points of law with the Audit Court sitting in plenary, claiming that the Third Chamber had erred in law.

The Plenary held a hearing on 9 October 1991 at which the applicant did not appear. On 24 June 1992 the Audit Court decided that the applicant had not been duly summoned and adjourned the case.

Another hearing was held on 4 November 1992 at which the applicant was duly represented. On 26 May 1993 the Audit Court upheld the applicant’s appeal, on the ground, inter alia, that the Third Chamber had failed to examine in depth the cause of the paralysis of the applicant’s right hand. It sent the case back to its Third Chamber for reconsideration.

The Third Chamber held a hearing on 22 October 1993 at which the applicant was neither present nor represented. On 28 January 1994 it decided to adjourn the case. It ordered the applicant to produce within two months a number of decisions issued in the context of criminal proceedings against the applicant before 14 June 1984. It also sent the applicant’s file to the Health Committee of the Region of Attica ordering it to examine the applicant and to deliver an opinion on the following issues: Was the applicant’s paralysis the result of “injury” or “illness”? What was the extent of his disability? Was there any relationship between his disability and his activities during the dictatorship?

On 25 November 1994 the Health Committee considered that it could not deliver an opinion on the applicant’s case in the absence of any evidence that the applicant’s health condition was related to his activities during the dictatorship. On 29 March 1995 the applicant was informed of the Committee’s decision not to deliver an opinion.

On 6 October 1995 the Third Chamber of the Audit Court held a fresh hearing.

A further hearing was held on 29 November 1996. The Court has not been informed of any decision of the Third Chamber of the Audit Court. The Government state that judgment is to be delivered shortly.

Section 31 of Law no. 1543/85 provides the following:

“All Greek citizens who were injured by or as a result of their direct involvement in the struggle against the dictatorial regime of 21 April 1967 to 23 July 1974 or as a result of their opposition to the above-mentioned regime are entitled to a pension paid by the State Treasury, provided that the above-mentioned circumstances have been recognised in a court decision based on public documents issued no later than 14 June 1984.

This provision does not create a right to a pension for persons who contracted an illness, as distinct from an injury, through their opposition to the dictatorship. Such a right was however created by a law of 1988 which is not relevant to the present case.

The award of a pension is not automatic but has to be applied for through the Prefecture to the Pensions Regulatory Service of the General Accounting Office.

An objection against the decision of the Pensions Regulatory Service can be brought before the Pensions Verification Board of the General Accounting Office (Article 66 of the Civilian and Military Pensions Code).

An appeal lies within one year to a Chamber of the Audit Court (Article 48). A further appeal, on points of law, lies within one year (Articles 109 and 114) to the plenary Audit Court, which has the power to refer the case back to the competent Chamber (Article 116).


The applicant, Mr Murat Arslan, is a Turkish national who was born in 1979 and is currently detained in Nazilli Prison (Turkey). He was represented before the Court by Mr E. Yildiz, a lawyer practising in Izmir.

On 9 October 2001 the applicant was arrested and taken into police custody at the headquarters of the anti-terrorism branch of the Izmir security police.

On 12 October 2001, after being interviewed by the public prosecutor at the Izmir National Security Court, he was taken before a judge of that court who on 13 October 2001 ordered his detention pending trial.

On 19 October 2001 the public prosecutor committed the applicant for trial in the National Security Court.

The criminal proceedings against the applicant are still pending.

The applicant’s lawyer dated his application 12 April 2002 and took it on 19 April to the post office in Konak (central Izmir), where post is collected regularly several times a day.


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant, Mr Ayodeji Yesufa, is a Nigerian national who was born in 1984. He currently lives in Nigeria. He was represented before the Court by Doves Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office.

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

The applicant and his brother arrived in the United Kingdom in 1987 to join their father, who was resident there, and their sister, who was born in the United Kingdom and was a British citizen. When the applicant’s father died in 1995 his mother came to the United Kingdom to care for him. On 14 August 2000 the applicant was granted Indefinite Leave to Remain as a dependant of his mother.

Shortly after the death of his father, the applicant began to mix with older children and he started to commit criminal offences. When he was approximately twelve years old he was expelled from school. Between August 1998 and September 2003 he accumulated twenty-six criminal convictions arising from fifteen sentencing hearings for offences including criminal damage, driving whilst uninsured, receiving stolen goods, possession of a Class B drug (cannabis), common assault and burglary. The maximum sentence that he received was a twelve month detention and training order.

On 14 December 2004 the applicant was convicted of robbery. On 19 January 2005 was sentenced to four years’ imprisonment. In two separate incidents the applicant and a number of accomplices had stolen GBP 80 and some alcoholic beverages from an off-licence and four items of jewellery from a pawn brokers. During the second incident the applicant and his accomplices were armed with iron bars.

On 30 January 2006 the Secretary of State for the Home Department wrote to the applicant asking him to submit reasons why he should not be deported following his conviction on 14 December 2004. His representations were considered but the Secretary of State concluded that his deportation would be conducive to the public good. That decision was issued to the applicant on 18 February 2006. He appealed to the Asylum and Immigration Tribunal (“AIT”). On 26 April 2006 the Immigration Judge dismissed the appeal, holding, inter alia, that the decision appealed against would not cause the United Kingdom to be in breach of the law or its obligations under the Convention as the applicant did not enjoy family life in the United Kingdom and there were no insurmountable obstacles to his mother and brother returning to Nigeria with him. The AIT found no error of law in the Immigration Judge’s decision and refused to make an order for reconsideration. In an undated decision the Administrative Court ordered the AIT to reconsider the Immigration Judge’s decision on the ground that the judge had erred in law in finding that the applicant’s family could be expected to return to Nigeria with him. On reconsideration, the AIT accepted that the applicant had established both family and private life in the United Kingdom but held that any interference was not a disproportionate exercise of the Secretary of State’s discretion to make a deportation order. On 8 August 2007 the AIT refused to grant the applicant leave to appeal to the Court of Appeal.

The applicant was released on licence on 5 January 2007. He subsequently was convicted of a further eight offences, including carrying a lock knife in a public place, breaching bail conditions, possession of a Class A drug and motoring offences.

On 22 October 2008 the applicant was deported to Nigeria.

On 15 September 2009 the applicant indicated for the first time that he had been in a ten-year relationship with a British citizen, who had given birth to their child on 7 June 2009.

Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(a) of the same Act (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.

Sections 82(1) and 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules.

The Rules relating to the revocation of a deportation order are contained in paragraphs 390 and 391 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate’s Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation will not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.


The applicant, Mrs Valentina Vsevolodovna Podolskaya, is a Russian national, who was born in 1932 and lives in Orenburg. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

On 16 June 2000 the applicant’s husband, Mr Podolskiy, was presented a book Doctors of the 20th Century (“Доктора ХХ века”) published by the Orenburg health protection department. On reading the book Mr Podolskiy found that his name had been omitted from a chronological list of directors of the Orenburg health protection department, although he had worked in that position from 1966 to 1981. Also, in another place there was a mistake in his initials. Finally, the book contained a photograph of Mr Podolskiy with an unknown woman; the caption of the photograph indicated that the persons on the photograph were “Mr Podolskiy with his spouse”.

On 7 August 2000 Mr Podolskiy lodged a civil action against the authors and publishers of the book for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. He also sought an injunction to stop dissemination of the book, recall all printed copies and make necessary corrections. Mr Podolskiy submitted that the omissions in the publication damaged his professional reputation and also “upset the peace” of his family life. He explained that he had been married to his spouse for more than fifty years and they both adhered to “traditional moral values” that included disapproval of divorce and re-marriages. He also stated that because of the publication he had to seek medical assistance in June and July 2000.

On 15 May 2001 the Leninskiy District Court of Orenburg gave its judgment. The court found that a mistake in Mr Podolskiy’s initials was a typographical error. It established that Mr Podolskiy’s name had been wrongly omitted from the chronological list and the caption of the picture was indeed incorrect. Nevertheless, the court concluded:

“However, the court does not consider that [this information] is damaging, i.e. [that it] contains indications that the plaintiff has committed an offence under existing laws or has transgressed moral principles...

Re-marriages are not prohibited by law, not condemned in society and can be entered into because of various reasons.”

The court dismissed Mr Podolskiy’s action in full. On 24 May 2001 Mr Podolskiy’s lawyer appealed against the judgment. He argued, in particular, that the damage caused to the plaintiff’s goodwill had to be assessed with regard to the plaintiff’s individual subjective values, such as the conviction that remarriages were unacceptable.

On 4 July 2001 Mr Podolskiy died of a heart attack.

On the applicant’s request, she was recognised as Mr Podolskiy’s legal successor in the civil proceedings. The court agreed that the applicant also had her own interest in pursuing the claim.

On 30 August 2001 the Orenburg Regional Court upheld the judgment of 15 May 2001. The court confirmed that the information in the book was incorrect; however, it did not consider that such information was damaging to Mr Podolskiy’s or the applicant’s dignity, honour or reputation.

Article 151 of the Civil Code of the Russian Federation of 30 November 1994 provides that a court may award compensation for non-pecuniary damage to an individual who sustained such damage as a result of acts that violated his personal non-pecuniary rights.

Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for retraction of information damaging his or her honour, dignity or professional reputation unless the person who distributed such information proves its accuracy. In addition to retraction, the individual may also claim compensation for losses and non-pecuniary damage sustained as a result of distribution of such information.


Violation of Art. 5-1;Non-pecuniary damage - financial award

The applicant was born in 1959 and is currently staying in a custodial clinic in the Netherlands.

Between 1975 and 1995, the applicant was convicted nineteen times of theft, criminal damage, assault and aggravated assault. On 21 January 1997 the Arnhem Regional Court (arrondissementsrechtbank) convicted the applicant of assault and assault occasioning grievous bodily harm committed in 1996. Having found that at the time of the commission of the offence the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree, the Regional Court sentenced the applicant to fifteen months' imprisonment in combination with an order for his confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege).

On 16 September 1997 the Arnhem Court of Appeal (gerechtshof) upheld the Regional Court's judgment of 21 January 1997.

Although the applicant had initially filed an appeal in cassation with the Supreme Court (Hoge Raad) against the judgment of 16 September 1997, he withdrew this appeal on 5 February 1998 when, after having served his prison sentence, the TBS order took effect. However, he was not transferred to a custodial clinic but was held in preplacement detention in an ordinary remand centre (huis van bewaring).

On 7 August 1998, the applicant filed an appeal with the Appeals Board (beroepscommissie) of the TBS Section of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing) against the apparently automatic prolongation by three months of the six-month period of preplacement detention referred to in Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden; hereinafter referred to as “the 1997 Act”). He submitted that this six-month period had expired, that he had not received written notification from the Minister of Justice that his preplacement detention would be extended by three months and, apparently, that the procedure for selection and placement in a custodial clinic in his case had not yet started.

Between 11 September and 11 November 1998 the applicant stayed in the Dr. F.S. Meijers Institute for the purpose of selection and subsequent placement in a custodial clinic.

On 5 November 1998 the applicant filed a further appeal with the Appeals Board against the second apparently automatic prolongation of his preplacement detention by three months. He requested the Appeals Board to suspend the second prolongation request.

On 10 November 1998 the Minister of Justice filed written submissions with the Appeals Board in response to those filed by the applicant.

On 11 November 1998 the President of the Appeals Board rejected the applicant's request to suspend the further execution of the Minister's decision of 2 November 1998 to prolong the applicant's preplacement detention in the remand centre by three months. Taking into account the fact that the applicant, at the time of the decision, had spent eight months awaiting placement in a custodial clinic and that, according to the medical report of 15 October 1998, there was no apparent urgent medical need for his placement in a custodial clinic, the President found no pressing interest which required the suspension of the Minister's decision.

On 28 January 1999 the applicant filed an appeal against the third apparently automatic prolongation by three months of his preplacement detention. On 15 February 1999 the Minister informed the applicant that he could not yet be admitted to a custodial clinic and that his preplacement detention had been prolonged by a further period of three months, i.e. from 31 January to 30 April 1999.

On 10 March 1999, after a hearing held on 19 January 1999, the Appeals Board gave its decision on the applicant's appeals against the first and second automatic prolongations of his preplacement detention. This decision, in so far as relevant, reads:

“1. The challenged decisions

'1.1 The Minister had not extended by 4 August 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ... , this failure is to be considered a decision to prolong this period.

1.2 The Minister had not extended by 2 November 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ..., this failure is to be considered a decision to prolong this period. ...

The facts

... The appellant's TBS order took effect on 5 February 1998. Since then, he has spent a transitory period in the G. remand centre awaiting placement in a custodial clinic.

By letter of 2 September 1998 the Minister informed the appellant that he could not yet be placed in a custodial clinic and that the transitory period (passantentermijn) pending his placement in a custodial clinic had, for the time being, been ipso jure prolonged by three months from 4 August 1998 to 2 November 1998 ... On 16 October 1998 the appellant was heard by a penitentiary adviser.

By letter of 2 November 1998 the Minister informed the appellant that he still could not be placed in a custodial clinic and that his preplacement detention pending his admission to a custodial clinic was to be prolonged further from 2 November 1998 to 31 January 1999.

The appellant was admitted for selection purposes between 11 September 1998 and 11 November 1998 to the Dr F.S. Meijers Institute in Utrecht. He was selected for the custodial clinic X in Y.

The Utrecht District Psychiatric Service has provided a medical statement dated 15 October 1998 on the appellant's mental condition, which has been supplemented by a report of 16 October 1998.

The parties' submissions

... The [applicant's] lawyer further considers, relying on the learned observation by a commentator on the [Bizzotto v. Greece] judgment of the European Court of Human Rights of 15 November 1996, Netherlands Law Reports (Nederlandse Jurisprudentie) 1998, no. 203, that there is already a violation of Article 5 of the Convention when the six-month delay is exceeded. ...

[The Minister], as to the [applicant's] reliance on Article 5 of the Convention, points out that the TBS order serves in the first place for the protection of society and, in the second place, for the treatment of the person concerned. According to the Supreme Court's case-law, the execution of a TBS order in a remand centre is not an unlawful deprivation of liberty. Where a reproach can be made of the fact that the 'treatment aspect' is lacking, liability for damage arises. If an appeal is declared well-founded by the Appeals Board, the 'treatment aspect' is also lacking and imputable as from the relevant expiry date.

The assessment

... 5.2.1 The following must be first stated in assessing the appeal. On the basis of the history of the enactment of Article 12 of the [1997] Act ..., it must be assumed that it has been the intention of the legislature that a lack of capacity in the custodial clinics may in principle give the Minister reason to prolong by three months, as often as necessary, the period of six months set out in the first paragraph of this provision within which a person subject to a TBS order must be placed in a custodial clinic. A decision by the Minister to prolong this period on grounds of lack of capacity does not, therefore, constitute an automatic ground for declaring the appeal well-founded. ...

5.2.3 ... in examining appeals filed by persons subject to a TBS order against decisions of the Minister to prolong the transitory period, the Appeals Board must at least have at its disposal information to be supplied by or on behalf of the Minister in relation to:

– the available capacity or the lack of capacity in custodial clinics at the time of taking the decision to prolong the transitory period, as well as a prognosis on this for the three months' period following the decision;

– an indication of the average duration of transitory stays in remand centres of persons subject to a TBS order at the time when the decision to prolong the transitory period was taken;

– the pro justitia report in relation to the mental condition of the person concerned who is subject to a TBS order, and a statement by a doctor on the question whether the person concerned, in view of his mental condition, is able to stay any longer, on a transitory basis, in a remand centre.

5.2.4 The Minister is obliged, prior to the expiry of the transitory period referred to in Article 12 of the [1997] Act ..., to take a decision on the prolongation of this period and, in doing so, to comply with the procedural regulations set out in Article 53 § 2 (a) of the [1997] Act ... – the obligation to hear – and Article 54 § 2 of the [1997] Act ... – the obligation to inform. These regulations are of essential importance for the legal position of the person subject to a TBS order and the Minister is therefore obliged to comply with these regulations in the decision-making process concerning the prolongation of the transitory period. ...

5.3 The argument based on Article 5 of the Convention fails. The detention of a person subject to a TBS order in a remand centre is, after all, based on the judicial decision in which the TBS order has been imposed, whereas Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) provides that 'remand centres are intended for the accommodation of all others lawfully deprived of their liberty by a judicial decision ... for as long as their admission to another suitable place is not possible'.

5.4.1 In so far as the appeal is directed against the prolongation of the transitory period for placement from 4 August 1998 until 2 November 1998, the Appeals Board considers as follows:

5.4.2 It has appeared from the examination of the present case that the Minister did not, prior to the expiry of the delay for placement, take a decision to prolong that delay. Nor has the appellant been heard on this subject in a timely manner. The Minister's reliance on the exception contained in Article 53 § 4 (a) of the [1997] Act ..., as regards refraining from hearing requests of an urgent nature, fails. This provision is not applicable as in the present case there was no sudden event requiring an immediate measure and thus no opportunity to hear the person concerned.

The Appeals Board is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister's [implied] decision to prolong the transitory period must be quashed on formal grounds.

5.4.3 The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister's conduct referred to in 5.4.2. The Appeals Board fixes this compensation, having heard the view of the Minister, at 100 Netherlands guilders (NLG).

5.4.4 As the Minister, regarding the prolongation at issue, has not sent separate written notification to the appellant, but did inform the appellant, by written notification of 2 November 1998, of the further prolongation of the transitory period after he had been heard on that matter, the Appeals Board will not order the Minister to take a new decision in respect of the period referred to in 1.1. but will examine whether there are also material grounds for quashing the ... decision. Further reference is made to the considerations set out in 5.6.

5.5.1 In so far as the appeal is directed against the prolongation of the transitory period for placement from 2 November 1998 until 30 January 1999, the Appeals Board considers as follows:

5.5.2 It has appeared from the examination of the present case that the Minister did not, prior to the expiry of the delay for placement, take a decision to prolong that delay. The Appeals Board is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister's decision to prolong the transitory period must be quashed on this formal ground.

5.5.3 The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister's conduct referred to in 5.5.2. The Appeals Board fixes this compensation, having heard the view of the Minister, at NLG 100.

5.6 It has been sufficiently established from the examination of the present case that, as a result of a lack of capacity, the appellant has still not been placed in a custodial clinic. It has also been sufficiently established that the Minister, in his decision on this matter, has not deviated from his policy to determine the order of placement in a custodial clinic chronologically according to the date on which the TBS orders in respect of the appellant and other [like] persons ... took effect.

5.7 The total duration of the appellant's stay in a remand centre [awaiting placement in a custodial clinic] ... has not yet been so long that these decisions to prolong the transitory stay, balancing all relevant interests, must be regarded as unreasonable or inequitable.

5.8 It appears from the medical statement of the Utrecht District Psychiatric Service of 16 October 1998 that the appellant's mental condition at that moment was such that a further stay in the remand centre should be regarded as irresponsible. Although the Appeals Board considers it highly desirable that the Minister, as regards subsequent prolongation decisions, should submit on each occasion updated medical reports, it finds, in respect of the present appeals, that the medical report drawn up shortly before the second prolongation suffices. From the report on the selection examination in the period between 11 September 1998 and 11 November 1998 (falling partly within both of the prolongation periods challenged), it does not appear that the detention was unsuitable during the period of admission to the Dr F.S. Meijers Institute.

5.9 The Appeals Board is of the opinion, having regard to the above considerations, that the decisions challenged are not in violation of the substance of the [1997] Act ..., and that the period within which the appellant should be placed in a custodial clinic had to be prolonged from 4 August 1998 to 2 November 1998 and from 2 November 1998 to 31 January 1999.

5.10 As the decisions challenged must be quashed on formal grounds, the Appeals Board rules, pursuant to Article 66 § 3 (b) in conjunction with Article 69 § 5 of the [1997] Act ..., that its decision in respect of the prolongations of the transitory period should replace those which were challenged. ...”

No further appeal lay against this decision.

On 22 April 1999 the Minister of Justice decided to prolong the applicant's preplacement detention by a further period of three months as from 1 May 1999. The applicant filed an appeal against this decision on 4 May 1999 with the Appeals Board.

The applicant was admitted to a custodial clinic on 17 May 1999.

On 15 June 1999, following a hearing held on 19 April 1999, the Appeals Tribunal quashed the Minister's decision to prolong the applicant's preplacement detention from 31 January to 30 April 1999 on formal grounds, namely the Minister's failure to comply with the procedural regulations under Article 53 § 2 (a) and Article 54 § 2 of the 1997 Act. Finding also that the total duration of the applicant's preplacement detention could not be regarded as having been so long that, balancing all relevant interests, it should be considered unreasonable or inequitable, and having found no indication that the applicant's mental condition required a priority placement in a custodial clinic, the Appeals Board did not find that the impugned decision should be quashed for being in material breach of the 1997 Act. It decided that the applicant's preplacement detention should be prolonged until 30 April 1999. The Appeals Tribunal decided to replace the Minister's decision with its own decision to prolong the applicant's preplacement from 31 January to 30 April 1999. It awarded the applicant compensation in an amount of NLG 100 in respect of the procedural shortcomings in the Minister's decision.

In so far as the applicant had claimed that his preplacement detention was contrary to Article 5 of the Convention, the Appeals Board held:

“The argument based on Article 5 of the Convention fails. After all, the preplacement detention in a remand centre of a person subject to a TBS order is based on the judicial decision in which the TBS order has been imposed whereas, according to Article 9 § 1 (b) of the 1951 Prisons Act, as in force until 1 January 1999, casu quo Article 9 § 2 (f) of the [new 1999] Prisons Act as in force as from that date, persons subject to a TBS order can be held in a remand centre for as long as their admission to a place suitable for them is not possible. Under Article 12 of the 1997 Act, the duration of such a stay in a remand centre can, after six months, be prolonged by periods of three months.”

On 11 November 1999, after a hearing held on 17 September 1999, the Appeals Board ruled on the applicant's appeal of 4 May 1999. Having found it established that, contrary to Article 53 § 2 of the 1997 Act, the applicant's view had not been heard prior to the taking of the decision, the Appeals Board considered that, on this procedural ground alone, the impugned decision had to be quashed. In addition, it found that, also on material grounds, the decision of 22 April 1999 had to be quashed as at the expiry of that prolongation decision the applicant would have spent more than fifteen months in preplacement detention. A delay of more than fifteen months, balancing all relevant interests, should be regarded as unreasonable and inequitable. It awarded the applicant compensation of NLG 100 on account of the procedural shortcomings and NLG 1,250 for the sixteen days he had spent in preplacement detention on the basis of the decision of 22 April 1999.

On 18 February 2000 the Arnhem Regional Court (arrondissementsrechtbank) extended the applicant's TBS order by two years. An appeal by the applicant against this decision was rejected by the Arnhem Court of Appeal on 13 November 2000. No further appeal lay against this decision.

The relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht), as in force at the relevant time, read as follows:

“Article 13

A person sentenced to imprisonment who, on grounds of the inadequate development or pathological disturbance of his mental faculties, is eligible for this, may be placed in a judicial institution (justitiële inrichting) for the treatment (verpleging) of persons subject to a TBS order; in that case Articles 37c, 37d and 37e shall apply by analogy. ...

Article 37

The judge may order that a person who, owing to the inadequate development or pathological disturbance of his mental faculties, cannot be held responsible for an offence, be committed to a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) for a period of one year, but only if he represents a danger to himself, to others, or to the general safety of persons or property. ...

Article 37a

The judge may impose a TBS order (terbeschikkingstelling) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if:

1o the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, or if the offence is defined in Articles 132, 285 § 1, 318, 326a or 395 of the Criminal Code, Article 175 § 2 of the 1994 Road Traffic Act (Wegenverkeerswet), Article 11 § 2 of the Opium Act (Opiumwet), or Article 432, under 3o, of the Criminal Code, and

2o the said measure is necessary in the interests of the safety of others or the general safety of persons or property.

In applying paragraph 1, the judge may refrain from imposing a penalty, even if he finds that the suspect may be held criminally responsible for the offence.

In making an order referred to in paragraph 1, the judge shall take account of the statements contained in the reports made concerning the suspect's personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.

Paragraph 1 of this Article and Article 37 § 1 may be applied in conjunction with regard to the same offence.

Article 37b

The judge may order that a person who is subject to a TBS order be confined to a custodial clinic (verpleging van overheidswege) if this is necessary in the interests of the safety of others or the general safety of persons or property. ...

Article 37c

Treatment shall be provided in custodial clinics for persons subject to TBS orders in accordance with rules to be laid down by Order in Council (algemene maatregel van bestuur).

The Minister of Justice shall ensure that persons subject to TBS orders who are confined to a custodial clinic receive the necessary treatment. In respect of specific patients, the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property.

The rules to be laid down pursuant to paragraph 1 shall make provision for persons subject to TBS orders to appeal against decisions which restrict their freedom of movement or correspondence, or their right to receive visitors.

Article 37d

Persons subject to TBS orders may be confined to the following institutions, on condition that the institutions have been designated for this purpose by the Minister of Justice:

a. private institutions managed by legal persons established in the Netherlands;

b. State institutions.

Treatment shall preferably take place in a private institution. ...

Article 37e

The costs of the confinement of persons subject to TBS orders shall be borne by the State in so far as no other provision is made for them by or pursuant to any Act of Parliament. Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in State institutions.”

A TBS order with confinement to a custodial clinic is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned. It is initially imposed for a period of two years and may be prolonged by a judge for further periods of one or two years where the safety of others or the general safety of persons or property so require (Article 38d of the Criminal Code). The total duration of a TBS order may not exceed four years, unless it has been imposed on the ground of an offence directed against, or constituting a danger to, the physical integrity of one or more persons. In the latter case, there is in principle no restriction on the number of extensions that can be granted by a judge (Article 38e of the Criminal Code).

The provisions relating to the proceedings on the extension of a TBS order are set out in Articles 509o – 509x of the Code of Criminal Procedure (Wetboek van Strafvordering). Article 509o § 1 provides that the public prosecutor's office (openbaar ministerie) may submit a request (vordering) for the prolongation of a TBS order no sooner than two months and no later than one month before the date on which the order is due to expire. The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment (Article 509o § 2 CCP). The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the TBS order (Article 509p).

Article 9 of the 1951 Prisons Act (Beginselenwet gevangeniswezen), as in force until 1 January 1999, provided:

“Remand centres are intended:

a. for the accommodation of those who must undergo punishment by imprisonment or military detention;

b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible.”

On 1 January 1999, a new Prisons Act (Penitentiaire Beginselenwet) entered into force, replacing the 1951 Act. Article 9 § 2 of the 1999 Act, in so far as relevant, reads:

“The following may be held in remand centres: ...

f. persons subject to a TBS order with confinement to a custodial clinic within the meaning of Articles 37b or 38 c of the Criminal Code for as long as their admission to a suitable clinic is not possible.”

On 1 October 1997 Articles 1–11 and 13–80 of the Act on confinement to a custodial clinic of persons subject to a TBS order (“the 1997 Act”) entered into force. The custodial clinics, of which there were seven at the material time, are top-security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves. The treatment provided in these clinics is aimed at reducing this danger and preventing recidivism.

The 1997 Act distinguishes between care (verpleging) and treatment (behandeling). The provision of care in a custodial clinic is aimed at the protection of society against the risks posed by persons subject to a TBS order by keeping them confined in a secure institution. The treatment provided in a custodial clinic is geared to individual disorders and personalities. It is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society.

Pursuant to Article 12 of the 1997 Act, which provision had already entered into force on 11 July 1997, a person subject to a TBS order must be admitted to a custodial clinic within six months after the TBS order has taken effect. This period can be extended by the Minister of Justice by further periods of three months each time if placement proves impossible. A failure to give an explicit prolongation decision is considered to be a decision to prolong the preplacement detention. In such a situation, the preplacement detention is extended automatically. Consequently, a failure to give a prolongation decision can never result in the release of the person concerned, who may challenge such an implicit decision by taking appeal proceedings before the Appeals Board.

Article 11 of the 1997 Act provides that the Minister of Justice must decide in which specific custodial clinic the person concerned is to be placed, and that such a decision should – at least – take into account the requirements of the protection of society against the dangerousness of the person subject to a TBS order, the safety of persons other than the detainee or the general safety of persons or property, and the requirements of the treatment of the person concerned in view of the nature of the established inadequate development or pathological disturbance of his or her mental faculties.

The decision on the selection of the most appropriate custodial clinic – given the differences between the various institutions as regards their security levels, patient population (gender, psychiatric diagnosis of the patients and their ability to function in a group setting, etc.), methods of treatment and the average stay of patients – is in most cases preceded by a seven-week period of psychiatric observation in the Dr F.S. Meijers Institute, an institution specialised in this field.

In the National Ombudsman's report no. 96/575 of 5 December 1996, which concerned the situation prior to the entry into force of the 1997 Act, it was stated that, in principle, taking into account the seven-week observation period and a margin of some weeks for the administrative processing of the selection application and the admission procedure, a delay of three months between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable. Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded, the National Ombudsman further held that an additional delay of no longer than three months at the very most might still be acceptable. However, given the responsibility of the Minister of Justice for adequate capacity planning, the Ombudsman did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of preplacement detention unavoidable.

Since September 1999 a simplified system has been used for the selection and placement of persons subject to a TBS order. This has resulted in a reduction of the delay in effecting admission to a custodial clinic. In 2002 this delay was, on average, 248 days.

In the report of 15 July 1993 of the European Committee for the Prevention of Torture and Inhuman Treatment (the “CPT”) on its visit to the Netherlands from 30 August to 8 September 1992 (CPT/Inf (93)15), it is stated:

“130. ... the delegation also met (for instance, in the De Schie Prison, the De Singel Prison and the FOBA) some male and female prisoners in respect of whom treatment measures (eg. a TBS placement) had been decided, in some cases a long time before, but who had not yet been transferred because of a lack of places.

The CPT would like to receive the Dutch authorities' comments on this subject.”

In their response to the CPT report (CPT/Inf (93)20), the Netherlands Government stated:

“The increase in the number of persons under a TBS order has placed the existing capacity under severe strain, causing a rise in the number of prisoners awaiting transfer to a TBS clinic. The Netherlands Government shares the CPT's view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time. The situation has changed, however, since the delegation's visit. A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments, and outpatient departments for part-time treatment have been added to some TBS clinics, widening the prospect for earlier probationary leave. These measures will reduce waiting times considerably.”

In the CPT report of 29 September 1998 on its second visit to the Netherlands from 17 to 27 November 1997 (CPT/Inf (98)15), it is stated:

“111. Since the beginning of the 1990s, the Dutch authorities have been confronted by a significant increase in TBS orders, a problem which has been exacerbated by the prolonged stays – for more than six years – of some 160 persons within the TBS system. As a result, the number of persons waiting in prisons for admission to TBS establishments rose from 26 in 1991 to over 200 at the time of the CPT's second periodic visit. In response to this situation, the Dutch authorities have decided to increase the number of TBS places, in order to reach a capacity of 1,000 in 1999. However, the CPT notes that, in a letter sent to the Lower House of Parliament on 2 April 1998, ... the Minister of Justice indicated that the shortage of TBS places in 2002 is estimated at 340.

Concern has been expressed in the Netherlands about the position of inmates waiting in prison for admission to a TBS institution. During this waiting period, currently averaging 9 months, the persons concerned do not receive the treatment they require, a situation which, it has been pointed out, is likely to provoke feelings of anxiety, self-doubt and anger in the persons concerned. Further, as they are considered dangerous, those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held.”

In their response to the CPT report (CPT/Inf (99)5), the Netherlands Government informed the CPT of the measures taken by the Dutch authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission. According to the Netherlands Government, efforts were being made to improve/accelerate the outflow of TBS patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of TBS orders was expected both to increase the outflow of TBS patients as well as to reduce the number of patients entering custodial clinics.

The Government further informed the CPT that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem, but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons. In these experiments, therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual TBS treatment and to reduce the growing hostility felt by these people towards the justice system. According to the Government, the initial results of these experiments were encouraging in that the persons involved – therapists, prison staff and inmates – had all responded positively, and there was a growing demand among prisoners awaiting admission to a TBS institution for this kind of support (pp. 40-41).


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

On 6 November 1991 Tageblatt, a Luxembourg daily newspaper published in German, printed an article by journalist Josy Braun on various reafforestation techniques that had been used after the storms in early 1990 that devastated part of the Luxembourg woodlands. The article appeared under the title “Wiederaufforstung ... das ganze noch einmal” (“Reafforestation ... all over again”) and included the following:

[Translation from a French translation provided by the applicant]

“The cynicism really knows no limits, since it should not be forgotten that these forest gardeners cut down trees, buy, plant, ‘treat’ with public funds, to the tune of millions of francs. (Ministers, lend an ear!)

What does all this hide? Of course, there will be a full denial by all concerned, but the conclusion to be drawn after various discussions with people in the industry should be this: It is better to replant two or three times with plants from a seller who gives a generous percentage than once with plants from a firm that has the nerve to refuse to pay bribes. (Comment from someone familiar with the system: ‘I know of only one person who is incorruptible.’ He gave the name of the forest warden from ‘Bambësch’.)

‘Naturally’, it’s a case of the tabloid press yet again publishing ‘unsubstantiated monstrosities’; ‘naturally’, there is no truth in any of it, but the owners of the woodlands, whether the State, municipalities or private individuals, should be aware of one thing: they are the ones who must pay for the repeated reafforestation of dubious benefit; and they the ones who should demand that the political authorities remove the dung from Augeas’s Stables, instead of continually trying, with mixed success, to muzzle those who have the nerve to put the public interest before the private interests of a few ‘fleas in the scrotum of the Welfare State’ (dixit Degenhard).”

The applicant was at the time a journalist on a national radio station, RTL 92.5, for whom he presented a weekly programme in Letzeburgesch entitled “Oekomagazin” dealing with nature and the environment. He had raised the subject of the problems connected with reafforestation after the 1990 storms on a number of occasions on the programme and had alluded, along with other Luxembourg publications, to a breakdown in the system.

The applicant had chosen reafforestation as the subject matter for his “Oekomagazin” programme of 6 November 1991. He began the programme with an introduction in which he reminded listeners that he had spoken the previous week about “the temptation for Forestry Commission people to take advantage when an opportunity present[ed] itself” and had referred to “a series of telephone calls from people all over the country who [had] interesting tales to tell”. He went on to say “in any event, one thing is clear: the woodland management chapter is much thornier than people might think”. He also reported, indicating that he was giving an example, that a person who had had work done in woodland he owned by a private contractor “no longer knew which way to turn” after receiving a bill for the work from the Forestry Commission responsible for the sector rather than the private contractor. After that introduction, he quoted certain passages from the aforementioned article, which he said was “strongly worded”. He said, inter alia:

“But there is money to be made at the sawmill as well as in wood. The same applies to the plantations, because they can be counted in millions. In a two-page article in today’s edition of Tageblatt, Josy Braun does not mince his words in denouncing various plantation practices used by the Water and Forestry Commission and he makes no concessions. The journalist writes, and I quote: ‘One already requires a certain dose of cynicism not to forget that these gardeners of the forest do not clear out, buy, plant, and (in inverted commas) treat the publicly owned woodlands with their own money, but with public funds to the tune of millions.’ Josy Braun then provides the proof (fazit) of the proposition: ‘It is better to replant two or three times with plants from a seller who pays a percentage than once with plants from a firm that has the nerve to refuse to pay a percentage.’ The Tageblatt journalist then cites an authoritative source from the industry who is quoted as saying: ‘I know of only one person who is incorruptible.’ The name of the forest warden from Baumbusch is given in that connection. ‘The owners of our forests, whether the State, municipalities or private individuals should be aware of one fact: they are the ones who must pay for umpteen questionable reafforestation projects’, to quote again from the Tageblatt journalist, ‘It is they who ought to demand that the political authorities clean out Augeas’s Stables once and for all’ ...”

The applicant explained that with that “strongly worded” article, Josy Braun had implicitly referred to the provision in the Criminal Code relating to intermeddling, which prohibits civil servants working for the State or the municipalities to use their official status to derive personal gain. He added that people working for the Water and Forestry Commission “have a reasonable salary and can under no circumstances claim a hand-out and get rich at the expense of public-owned woodlands or of private owners, buyers of wood or tree nurseries”.

He then proceeded with the theme of the programme and put questions to W., a Water and Forestry Commission engineer, before asking R., a private woodlands owner:

“In a strongly worded article by journalist Josy Braun this morning, it is said: ‘It is better to replant two or three times with plants from a seller who is generous with bribes than once with plants from a firm that has the nerve to refuse to pay bribes.’ Mr R., what do you think of that strongly worded phrase. You also work a little in this branch: what is your experience in this sphere? Is what Josy Braun says true?”

After R. had expressed his opinion on that point, the applicant questioned him further on the subject of the importation of plants, a matter he had previously raised with W., the engineer. He asked R. the following questions:

“And what is your opinion on the delivery of plants from abroad, possibly through Luxembourg traders? Is it possible that the plants, which come from Hungary or Spain, for example, are delivered without being checked?”

After R.’s reply, the applicant ended his programme with a long debate on the theme of public tenders.

In a press release on 19 November 1991, the Association of Luxembourg Foresters announced its intention to lodge a complaint for defamation against the applicant. However, it did not do so.

Between November 1991 and February 1992 fifty-four forest wardens and nine forestry engineers brought civil actions in damages against the applicant alleging that he had damaged their reputation. They each claimed 1,000,000 Luxembourg francs (LUF) in compensation complaining that he had quoted accusations from the article published in the 6 November 1991 edition of Tageblatt without in any way toning them down, correcting them or commenting on them “the slightest bit critically”, and that he had passed them off as his own. He had thus suggested publicly that all forestry wardens in Luxembourg (of whom there were eighty at the time) and all Luxembourg forestry engineers were, with only one exception, corruptible and corrupt. In their writs, they quoted from a Luxembourg judgment of 1989, in which it was held as follows:

“By establishing freedom of the press, the Constitution does not impose any restriction on the fundamental principle contained in Articles 1382 and 1383 of the Civil Code. Freedom of the press is not unlimited and ends where it infringes the legitimate rights and interests of others. Journalists do not enjoy any immunity exempting them from their obligation to exercise care towards all individuals and even the State and its institutions, and any breach, albeit slight, of that obligation is unlawful under the aforementioned Articles of the Civil Code which oblige anyone who, through his wrongdoing, or negligent act or omission causes damage to another, to make reparation.

Journalists may be held severally liable for any breach of their obligation to be truthful and objective” (judgment no. 9.637 of 13 November 1989, Cepal v. Bever).

The sixty-three statements of claim were couched in more or less identical terms.

The applicant requested that the various actions against him be joined and declared inadmissible on the ground that he had merely quoted statements made by a clearly identified person. He offered to adduce witness evidence to show that his investigations revealed numerous offences in the sphere concerned. He also lodged a counterclaim against each of the claimants for payment of LUF 25,000 as an allowance for preparing the case for trial and LUF 100,000 for abuse of process and vexatious proceedings; he also claimed costs and expenses.

The Luxembourg District Court examined the sixty-three cases at a single hearing and handed down sixty-three almost identical judgments on 14 July 1993. It awarded each of the claimants one franc in nominal damages, dismissed the counterclaims and ordered the applicant to pay the costs and expenses.

After examining the text of the aforementioned passage from the Tageblatt article and the aforementioned quotations from the transcript of the applicant’s radio programme, the District Court held, inter alia:

“The journalist, Thoma, seized upon the article by Josy Braun and, in particular, the impugned passage, to persuade the public that the legislation in force was not being complied with and to adopt Josy Braun’s ‘fazit’ conclusion.

This Court considers that the use of the words ‘Forstleit, Forstverwaltung’ to restrict the circle of people concerned by the programme, the use of Braun’s conclusion to support the assertions, citing a person who was supposedly familiar with that circle (Berufener Stemm aus dem Milieu), the assertion that that person knew only one person – from that background – who was incorruptible, meant that those against whom the accusation was made are sufficiently identifiable.

In view of his position (as a Forestry Commission employee), the claimant has sufficiently established in law that Thoma’s remarks were directed against him.

This Court must analyse whether by so acting the defendant has committed an act that falls to be dealt with under the provisions of Articles 1382 and 1383 of the Civil Code.

It is true that the press has the right, and even the duty, to criticise abuses that come to light in public life (CSJ 23 March 1912 P.8, p. 346).

It is incumbent on professional journalists to publish breaking news, news items and, generally, anything which seems to them to present an interest as soon as they can (Luxembourg District Court, 14 February 1990, no. 100/90). The press must preserve its right to criticise the social activity of individuals, that is to say all those whose dealings directly concern the community. The press is entitled to say what it thinks about their activities, provided that it does not attack their reputation and provided that it acts in good faith (Luxembourg District Court, 27 October 1986, Feuille de liaison de la conférence St Yves no. 69, p. 43).

Marc Thoma was, accordingly, perfectly entitled to investigate the problems posed by the reafforestation of our woodlands after the storms and to denounce and to criticise practices which he considered to be inconsistent with the laws and regulations.

Indeed, through a series of articles in the press, the Luxembourg journalists have not missed the opportunity of drawing the attention of the public and the public authorities to matters which they believe it was their duty to criticise.

While it is true that absolute objectivity cannot be required of journalists, in view of their relatively unreliable means of investigation, they nonetheless have an obligation to act on information that has been verified to the extent the means available to them reasonably permit. The law requires journalists to act in good faith and does not seek to give immunity to persons who through spite, malice or foolishness seek by publication to discredit others. A mala fide intention may appear when a journalist had reasons to doubt the truth of the facts or his ability to produce evidence establishing them (Civ. Bruxelles, 29 June 1987 J.T. 1987).

In the instant case, it was for Thoma to prove that he had obtained sufficient evidence to enable him to adopt Braun’s allegations and to assert that the claimant had been guilty of corruption in connection with the reafforestation of the woodlands.”

After rejecting an offer by the applicant to adduce evidence as being too vague, the District Court concluded:

“Marc Thoma has, accordingly, not established that he has sufficient evidence to show that the claimant was guilty of corruption in connection with the reafforestation of the woodlands.

It is not for this Court to order or complete investigative measures of its own motion in order to assist the journalist to carry out ex post facto the investigations and research which he should have performed before publishing the impugned article.

By giving the impression without evidence and without qualification that all the Water and Forestry Commission officials concerned by the reafforestation work were, with but one exception, corruptible, Thoma has overstepped the boundaries of his right to impart bona fide information and has, accordingly, committed a tort.”

The applicant appealed against all sixty-three judgments. In his appeal submissions, he requested the joinder of the fifty-four cases brought by the forestry wardens and the nine actions brought by the forestry engineers. His opponents contested that request. The applicant did not renew the offer to adduce evidence which he had made at first instance.

The Court of Appeal of the Grand Duchy of Luxembourg (Seventh Division) gave its decision in almost identical judgments delivered on 30 January 1996. It acceded to the applicant’s request for joinder and upheld the impugned judgments. In support of its decision to award each of the claimants nominal damages of one franc, the Court of Appeal added the following grounds to those that had been relied on by the District Court:

“By attributing the phrases ‘Ich kenne nur einen der unbestechlich ist. Sie nannte den Namen des Baumbusch-Försters’ not to a particular individual, but to a ‘berufene Stimme aus dem Milieu’, that is to a person in the know, someone from the background who is aware of confidential matters and can be relied upon not to provide false information, the text of Braun’s article quoted by the appellant suggests to the public and leads it to believe that, apart from the forest warden responsible for Baumbusch there was not one other Water and Forestry Commission official, whether ordinary forest wardens or even members of its management, who was incorruptible.

It follows that, contrary to the appellant’s assertion, the text quoted by him qualifies as corruptible ‘a defined group of identified people’, since he suggests that all Water and Forestry Commission officials are in that position and together they constitute a defined group of identified persons.

It follows from the foregoing that the claimants at first instance and respondents to this appeal – on whom the burden of proving the merits of their claims lies – have, in view of their position (as Forestry Commission staff), established that Josy Braun’s text quoted by the applicant was directed at them.

Further, the applicant fails in his attempts to deny liability by arguing that his remarks are no more than a quotation from the impugned article by Josy Braun.

A journalist cannot escape liability by arguing that the impugned article which he has published is merely a reproduction of one already published by someone else since, by choosing to reproduce the article, he appropriates the allegation contained in the reproduced text and thus incurs personal liability.

That is the position and a journalist who merely quotes from an article that has already appeared will only escape liability if he formally distances himself from the article and its content and if in terms of newsworthiness an interest exists in communicating the content of the article that has already been published.

In the instant case it is quite clear that in repeating in the ‘Oekomagazin’ programme of 6 November 1991 in Letzeburgesch the impugned passage from Josy Braun’s article in that day’s edition of Tageblatt, the appellant did not distance himself from the quoted text and, in particular, the aforementioned allegation which it contains.

It follows that even supposing that the appellant had merely quoted the impugned passage from Josy Braun’s article, that quotation nonetheless rendered him liable.

Finally, the Court of Appeal holds below that the appellant has failed to establish the merits of the allegation of corruption contained in the impugned passage in Josy Braun’s article which he quoted from without formally distancing himself from it. Under these circumstances, that allegation establishes by itself that when in the 6 November 1991 edition of ‘Oekomagazin’ the appellant repeated the passage from Braun’s article containing that allegation unreservedly, there was, contrary to what he asserts, no ‘lack of malice’ on his part ...

It follows that by leading public opinion to believe without evidence that the entire staff of the Water and Forestry Commission from forest wardens to the director were corruptible, the only honest employee being the forest warden from Baumbusch, the appellant has not complied with his obligation to impart bona fide information and has consequently committed a tort rendering him liable under Articles 1382 and 1383 of the Civil Code ...”

The applicant appealed to the Court of Cassation, which dismissed his appeals in two judgments of 20 March 1997. The Court of Cassation said, inter alia, that Articles 1382 and 1383 of the Civil Code established a system of reparation and that, subject to the last sentence of Article 24 of the Constitution and of section 16(2) of the Law of 20 July 1869 on the Press, the scope of those Articles in press cases was unlimited since, as in every other sphere, the courts would take account of the special nature of the activity of journalists in deciding whether a tort had been committed. It added that the courts below had justified their decision in law for finding a tort.

The relevant provisions of the Luxembourg Civil Code concerning liability under the general law read as follows:

“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”

“Everyone is liable for the damage which they have caused not only through their acts, but also through their negligent omissions or acts.”

For the purposes of Articles 1382 and 1383 the tort may result from a violation of a rule of criminal law. In that eventuality, the victim may either bring a civil action, or institute or be joined to criminal proceedings as a civil party.

The offence of damaging a person’s reputation is laid down by Article 443 of the Criminal Code, which provides:

“Anyone who, in the circumstances set out hereafter, maliciously accuses another of something that is liable to damage that person’s reputation or expose him to public scorn shall be guilty of calumny if, in cases where it is possible by law to plead a defence of justification, no admissible evidence supporting the accusation is adduced. He shall be guilty of defamation if the law does not allow of a defence of justification.”

Section 16 of the Law on the Press provides:

“Everyone who shall have taken part, as a principal, co-offender or accomplice in press offences shall incur criminal and civil liability.

However, if the principal is of known identity, a Luxemburger and domiciled in the Grand Duchy, the printer, editor and any accomplice shall be immune from suit.”

That provision introduced the notion of “indirect liability” in proceedings against the press. According to legal commentators, the system obviates the need for the author’s work to be subjected to prior censorship by the editor, printer or distributor. It is not a question of liability being diluted but of its attaching to one person, that person being the author, if his identity is known and he is domiciled in Luxembourg, or, failing that, the editor, printer or distributor.

Section 18 of the statute provides:

“No one shall be entitled to invoke by way of excuse or justification the fact that the writings, printed material, pictures or emblems are merely a reproduction of materials published in the Grand Duchy or abroad.”


The applicant, Mr Jarmo Eskelinen, a lawyer by profession, is a Finnish national who was born in 1951 and lives in Hämeenlinna. He is not represented before the Court. The respondent Government are represented by their Agent, Mr A. Kosonen, Director in the Ministry for Foreign Affairs.

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

The applicant was appointed as liquidator in the winding up of a company. He acted with another lawyer who embezzled the company’s and other companies’ funds.

In criminal proceedings, eleven companies which were being wound-up claimed compensation for losses caused by the embezzlement. The embezzler was convicted and ordered to pay compensation for the damage he had caused, but was found to be insolvent.

The companies commenced actions for compensation against the law office for which the convicted lawyer had worked, against his fellow partners and against those lawyers who had acted as co-liquidators with him as well as against their law offices.

On 12 July 1996 the company in respect of which the applicant had been appointed as liquidator, commenced an action against him, among others, before the District Court of Lahti (käräjäoikeus, tingsrätten). The summons was served upon the applicant on 6 August 1996. He filed his submissions on 7 October 1996.

Due to the substantial connections between the actions, the District Court decided to deal with them jointly. Negotiations for a friendly settlement between the parties were held. At least as far as the applicant was concerned, they were fruitless.

The companies submitted additional written observations on 30 April 1997. At the same time, they commenced an additional action.

The District Court held three preparatory hearings, on 5 and 10 November and 8 December 1997. The main hearings were held on 10 to 12 and 15 December 1997. The District Court dismissed the action against the applicant on 6 February 1998.

The companies, among others, appealed. At the appellants’ request, the time-limit for submission of the letters of appeal was extended. The time-limit for submission of the observations in reply was accordingly automatically extended until 14 May 1998.

On 20 May 1999 the Kouvola Court of Appeal (hovioikeus, hovrätten) upheld without an oral hearing the District Court’s judgment as far as the applicant was concerned.

The companies’ applications for leave to appeal were submitted on 16 July 1999.

On 11 May 2000 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal and invited the applicant, amongst others, to submit observations in reply by 16 June 2000.

The case was examined by the Supreme Court during 7 sessions, on 10 and 11 October 2000, 10 November 2000, 8 and 9 February 2001 and 4 and 30 May 2001.

On 9 August 2001 the Supreme Court annulled the Court of Appeal’s judgment and found in favour of the companies, ordering the applicant and others jointly to pay damages, amounting to FIM 1,425,440 (EUR 239,742) with interest as from 6 August 1996, and legal expenses.

The applicant’s insurance covered FIM 1,055,170 (EUR 177,467) and he paid FIM 510,749 (EUR 85,902) from his own funds.

Under chapter 16, section 4 of the Judicial Procedure Code (oikeudenkäymiskaari, rättegångsbalken), as in force until 1 October 1997, a court was to adjourn criminal proceedings on request, for example if a party wished to adduce further evidence and the court was satisfied there was a good reason for the adjournment. The court could not adjourn criminal proceedings of its own motion save for special reasons. Where the defendant in criminal proceedings was in detention, under a travel-ban or disqualified from holding office, a case could not be adjourned for more than two weeks save for carrying out a mental examination of the defendant. If a party considered that the proceedings had been unjustifiably delayed, a procedural complaint (kantelu, klagan) could be lodged with the court of appeal within 30 days from the date of adjournment.