Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in 1947 and lives in Kikinda.

In September 2000 the applicant bought a car (Mercedes 190D) from a person who lived in Germany. His intention was to use it as a taxi. Since the car was already more than six years old, the applicant was unable to have it directly registered in Serbia. Therefore, he first had the car registered in Bosnia and Herzegovina, in his relative’s name, and only registered the car in Serbia in December 2000, which was when the latter State adopted legislation making this arrangement possible.

On 21 January 2003 the Municipality of Kikinda issued a decision stating that the applicant, being a taxi driver since 20 September 2002, would from now on be using the car at issue as a taxi.

On 6 May 2004 the police seized the applicant’s car because of a customs violation (carinski prekršaj).

On 5 July 2004 the Customs Office (Komisija za carinske prekršaje Carinarnice Zrenjanin) discontinued the misdemeanour proceedings (prekšajni postupak) brought against the applicant, but decided nevertheless to confiscate his vehicle. The Customs Office explained that it was convinced that the applicant had committed the offence in question, i.e. that he had accepted to import a vehicle which could not have legally been imported and had not informed the competent customs authorities thereof, but noted that the misdemeanour proceedings could not be continued in view of the applicable “relative prescription” period (relativna zastarelost). The confiscation, however, was warranted since no “absolute prescription” (apsolutna zastarelost) had occurred (see paragraphs 23-25 below).

On 21 July 2004 the applicant filed an appeal against this decision, noting that the Customs Office had failed to properly establish the relevant facts, and had also come to “an erroneous legal conclusion” leading to the ultimate confiscation of his car.

On 18 February 2005 the Ministry of Finance (Ministarstvo finansija) rejected this appeal. In so doing, it stated, inter alia, that absolute prescription had not occurred and that the impugned confiscation was thus lawful.

On an unspecified date thereafter the Customs Office apparently sold the applicant’s car to a third person. The money thus obtained was deposited with the Ministry of Finance.

On 16 March 2005 the applicant filed an appeal on points of law (zahtev za vanredno preispitivanje pravosnažnog rešenja), re-stating his earlier arguments.

On 2 February 2007 the Supreme Court (Vrhovni sud Srbije) rejected the applicant’s appeal on points of law and upheld the impugned decision of the Ministry of Finance, as well as its reasoning.

The Government disagreed with some of the facts provided by the applicant and furnished additional details, which may be summarised as follows.

The applicant bought a second-hand car (Mercedes 190D) in August 2000 from a person who lived in Germany. The car’s former owner returned the licence plates to the competent German authorities.

At that time and given the vehicle age limitation requirement, the car in question could not have been legally imported to Serbia. In any event, even if this were possible, the applicant would have had to pay a significant sum for customs duties and taxes, i.e. a total of 44% of the catalogue value of the car.

At some point in 2000 the Government announced that it was considering a decree which would make it possible to import cars from one of the former Yugoslav republics free from any duties or taxes, and irrespective of the vehicle’s age. This decree was ultimately adopted in December 2000 (see paragraph 28 below).

The applicant then used forged documents to prove that the car had been registered in Bosnia and Herzegovina, in another person’s name, for the past three years. Thus he secured the enjoyment of the benefits provided by the said decree and succeeded in registering the car in Serbia on 12 December 2000.

On 23 March 2005 the Municipal Court (Opštinski sud) in Kikinda found the applicant guilty of having committed the crime of securing official certification of false information (navođenje na overavanje neistinitog sadržaja). In particular, the Municipal Court established that the applicant had submitted a forged document, i.e. a false Bosnian-Herzegovinian traffic permit, meant to indicate that the car in question was being imported from Bosnia and Herzegovina, rather than Germany, on the basis of which the competent Serbian authorities had issued him with a Serbian traffic permit (saobraćajna dozvola). The applicant, who had paid 5,000 German Marks (DEM) for the car, was sentenced to three months’ imprisonment, suspended for a period of one year.

On 1 June 2005 the District Court (Okružni sud) in Zrenjanin upheld this judgment on appeal, and it thereby became final.

Article 199 provides that customs-related misdemeanour proceedings may not be instituted if more than three years have elapsed as of the date of commission of the offence in question (relative prescription).

Article 204 § 2 provides, inter alia, that a vehicle used for the commission of a customs-related offence may be confiscated even when, for legal reasons, no proceedings may be brought against the perpetrator, except in cases of absolute prescription.

Article 48 provides, inter alia, that even if misdemeanour proceedings have been instituted absolute prescription shall occur when twice the time required for relative prescription has elapsed.

The Official Gazette of the Republic of Serbia no. 55/04 of 21 May 2004 published an amendment to this Act, whereby, inter alia, the Federal Misdemeanours Act 1977 was repealed in its entirety.

However, Article 69 § 7 of the Misdemeanours Act 1989, as amended, substantively corresponds to Article 48 § 1 of the former Federal Misdemeanours Act 1977.

In 1997 and 2000 two separate decrees were adopted by the Government (Uredba o registraciji vozila iz bivših republika SFRJ koje nisu u sastavu Savezne Republike Jugoslavije, published in OG FRY no. 32/1997, and Uredba o posebnoj naknadi za registraciju određenih vozila, published in OG RS nos. 49/2000, 51/2000 and 7/2001.) They set out the requirements for the registration of certain vehicles in Serbia, including those registered in one of the former Yugoslav republics.

Article 69 § 1 provides, inter alia, that objects used for the commission of a crime may be confiscated if they belong to the perpetrator.

Articles 84-87 provide, inter alia, that any pecuniary benefit obtained as a result of the commission of a crime shall be confiscated. The pecuniary benefit in question may include money, physical objects and any other valuables. Should confiscation in kind be impossible, the perpetrator may be obliged to pay a certain sum which shall be proportionate to his or her illegal gains.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The applicants were born in 1933 and 1945 respectively and live in Istanbul. They are the parents of Mr Bayram Duran, aged 26, who died in a police station in Istanbul on 16 October 1994, as a result of having been beaten by four police officers.

On 12 October 1994 a certain M.Y. filed a complaint with the police maintaining that a man had threatened his son and taken his money.

On 15 October 1994 M.Y. saw Bayram Duran on a bus and told the bus driver to go to the police station. Once in front of the police station, M.Y. asked the police officers to arrest Bayram Duran, maintaining that the latter was the person who had threatened his son. Subsequently, at around 11 a.m. Bayram Duran was arrested on suspicion of having committed robbery (gasp).

On 16 October 1994 at around 5 a.m. Bayram Duran was found dead at the Gazi police station.

On the same day, at 12.35 p.m. a “scene of incident and examination of the corpse” report was drafted and signed by the Gaziosmanpaşa public prosecutor, a medical expert, the director of the Gaziosmanpaşa police headquarters and four other persons. According to the report, there was no sign of ill-treatment or bullet wound on Bayram Duran’s body. The medical expert concluded that an autopsy was necessary to discover the cause of death. The report also contained details concerning the detention conditions, according to which the cell where Bayram Duran had been found dead had not been cleaned for around one week. There were several cigarette butts on the floor and spider webs on the walls. Furthermore, a sketch plan of the cell where Bayram Duran was found dead was drawn.

On the same day, the Gaziosmanpaşa public prosecutor took statements from the police officers who were on duty. The officers all contended that Bayram Duran had not been tortured or subjected to illtreatment while in custody and that they had found him dead in his cell when they had gone there to offer him a cup of tea.

On 17 October 1994 an autopsy was carried out on Bayram Duran’s body. In the autopsy report drafted on 14 December 1994 and signed by four doctors from the hospital at the Cerrahpaşa University, the cause of death was identified as cardiac failure. The forensic experts found a haemorrhage of 3 x 8 cm in the left scapular region. They nevertheless considered that the haemorrhage had not directly caused Bayram Duran’s death.

On 29 December 1994 the Gaziosmanpaşa public prosecutor issued a decision not to prosecute in respect of Bayram Duran’s death. Basing his decision on the autopsy report of 14 December 1994, the public prosecutor noted that the cause of death was not the haemorrhage.

On 21 February 1995 the first applicant, Ali Duran, filed an objection with the Beyoğlu Assize Court against the decision of 29 December 1994. He maintained that the content of the autopsy report was inadequate as, inter alia, it did not specify how the haemorrhage in Bayram Duran’s body could have been caused. He further contended that the public prosecutor had questioned only the police officers before rendering his decision. Ali Duran finally submitted that his son had been tortured to death and that the decision not to prosecute constituted a violation of his right to life.

On 30 May 1995 the Beyoğlu Assize Court requested the Gaziosmanpaşa Magistrates’ Court to hear evidence from the first applicant and a witness and to conduct an examination of the case.

On 15 September 1995 the Gaziosmanpaşa Magistrates’ Court heard evidence from the first applicant and two witnesses, H.K. and Ü.Y. The court then ordered the Forensic Medicine Institute to draft a report in order to determine whether the haemorrhage in Bayram Duran’s body could have been caused by illtreatment and whether there was a link between the haemorrhage and Bayram Duran’s death.

On 13 March 1996 a report was drafted and signed by six forensic medicine experts, including the director of the Forensic Medicine Institute. Having examined the autopsy report, the experts noted that Bayram Duran had suffered from a heart condition. They further considered that the haemorrhage had been caused by a direct trauma to the scapular region. The experts concluded that the stress caused by the trauma and the material conditions in which he had been detained had aggravated Bayram Duran’s heart condition and had given rise to a cardiac failure.

On 9 April 1996 the Beyoğlu Assize Court annulled the decision not to prosecute and decided to initiate criminal proceedings against the seven police officers who had signed the documents concerning Bayram Duran’s arrest on 15 October 1994. In its decision, the court noted that Bayram Duran’s death might have ocurred as a result of torture inflicted on him and it therefore considered that criminal proceedings should be initiated.

On 6 June 1996 the Eyüp public prosecutor filed a bill of indictment with the Eyüp Assize Court charging seven police officers with causing death unintentionally as a result of an act of violence, under Articles 452 § 2 and 251 of the former Criminal Code.

On 28 August 1996 the Eyüp Assize Court decided to transfer the case to the Denizli Assize Court on the ground of public security.

On 18 November 1996, upon the request of the Denizli Assize Court, the Silopi Assize Court heard evidence from one of the accused police officers, A.K., who denied the allegations against him.

On 26 November 1996, at the request of the Denizli Assize Court, the Istanbul Assize Court heard evidence from the persons who had alleged that Bayram Duran had committed robbery.

On 11 December 1996 the Istanbul Assize Court heard evidence from two of the accused police officers, H.A. and M.S., who denied the allegations against them and contended that Bayram Duran had died as a result of a heart attack.

On 20 December 1996 the Istanbul Assize Court heard evidence from the first applicant, H.K. and Ü.Y. The court postponed the hearing as a third witness was not present.

On 24 January 1997 the Istanbul Assize Court heard evidence from the third witness.

On 26 February 1997, at the second hearing before the Denizli Assize Court, the first applicant joined the proceedings as a civil party seeking redress for his pecuniary and non-pecuniary loss (müdahil).

On 26 March 1997 the Istanbul Assize Court heard evidence from one of the accused officers, A.Ç., who contended that he had not inflicted ill-treatment on Bayram Duran.

On the same day, at the request of the Denizli Assize Court, the Edirne Assize Court heard evidence from a doctor who had worked at a medical centre close to the Gazi police station at the time of the incident. The doctor maintained that he had been called to the police station by police officers in order to examine Bayram Duran, but that when he arrived there, Bayram Duran had already died.

Between 7 July 1997 and 10 May 1999 the Denizli Assize Court postponed hearings due to the absence of one of the accused, police chief A.Ş., whose statements had to be taken.

On 10 May 1999 the first-instance court ordered A.Ş.’s detention in his absence.

On 22 June 1999 the second applicant made a request to the Denizli Assize Court to join the proceedings as a civil party, seeking redress for her pecuniary and non-pecuniary loss. The first-instance court did not take a decision regarding the applicant’s request.

On 3 December 1999 A.Ş. made statements before the Denizli Assize Court and denied the allegation that Bayram Duran had died as a result of ill-treatment inflicted on him. A.Ş. maintained that Bayram Duran had been in custody on account of a simple accusation and that there had been no reason for inflicting ill-treatment on him. On the same day, the first-instance court reversed its order to detain A.Ş.

On 31 January and 6 April 2000, upon the request of the Denizli Assize Court, the Istanbul Assize Court and the Bakırköy Assize Court once again heard evidence from A.Ç., H.A. and M.S., who reiterated their previous statements.

On 6 September 2000 the Denizli Assize Court gave its judgment in the case. In the judgment, the assize court noted that M.S. had retired from public service and the other accused were serving as police officers. The Denizli Assize Court acquitted A.Ş., A.Ç. and H.A. of the charges against them, holding that there was insufficient evidence to convict them since they had left the police station at around 7 p.m. on 15 October 1994 and since the applicant had visited Bayram Duran a number of times up until 7 p.m. on 15 October 1994. The court considered that M.S., A.A., A.K. and İ.U., the officers who had been on duty between 7 p.m. on 15 October 1994 and 5 a.m. on 16 October 1994, had caused Bayram Duran’s death unintentionally by beating him, for reasons that could not be determined, and convicted them. Noting that the death had occurred as a result of the officers’ acts combined with a circumstance that had existed prior to the act which had not been known to the officers, namely Bayram Duran’s heart condition, the court sentenced M.S., A.A., A.K. and İ.U. to five years’ imprisonment pursuant to Articles 448 and 452 § 2 of the former Criminal Code. The court did not apply Article 243 of the former Criminal Code applicable at the time of the commission of the offence as it was unable to establish that the convicted officers had beaten Bayram Duran with a view to extracting a confession of guilt. In its judgment, the court noted that Bayram Duran had been beaten by the convicted police officers and that he had died as a result of the stress caused by this trauma. Taking into account the fact that the actual offender who had caused the trauma to Bayram Duran’s head could not be identified, the assize court reduced the police officers’ prison sentences to two years and six months pursuant to Article 463 of the former Criminal Code. Having regard to the fact that the officers had committed an offence while on duty, the firstinstance court increased the sentence to three years and four months pursuant to Article 251 of the former Criminal Code. The assize court finally reduced the sentence to two years, nine months and ten days of imprisonment for each convict pursuant to Article 59 of the Criminal Code, having regard to the fact that some of the convicted police officers’ statements had been of help to the authorities during the investigation and the criminal proceedings in establishing. The first-instance court held that the applicants’ right to redress for the pecuniary and non-pecuniary damage that they had suffered should be reserved.

The first applicant, through the lawyer who had represented him during the proceedings before the assize court, and the convicted police officers appealed.

In his appeal, the first applicant’s lawyer submitted that the application of Article 452 of the former Criminal Code and the lack of severity of the prison sentences rendered the first-instance court’s judgment ineffective, and thus constituted a violation of the provisions of the United Nations Convention against Torture, the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

On 1 October 2001 the Court of Cassation quashed the judgment of 6 September 2000 on procedural grounds. The court held that the Denizli Assize Court had failed to take a decision in respect of the second applicant’s request to join the proceedings. The case file was then remitted to the Denizli Assize Court.

On 10 December 2001 the first-instance court decided to allow the second applicant’s request to join the proceedings as a civil party.

On 25 March 2002 the Denizli Assize Court heard evidence from the accused police officers, who denied the allegations against them. On the same day, the first-instance court once again convicted M.S., A.A., A.K. and İ.U. as charged and sentenced each of them to two years, nine months and ten days’ imprisonment and reserved the applicants’ right to redress for the pecuniary and non-pecuniary damage that they had suffered.

The applicants, through their lawyer, appealed. They alleged that their son had been killed as a result of torture inflicted on him and that the first-instance court had failed to interpret the facts of the case correctly. They contended that the police officers should have been convicted of homicide as a result of torture under Articles 243 and 450 § 3 of the former Criminal Code in accordance with Article 3 of the European Convention on Human Rights and the provisions of the United Nations Convention against Torture and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The applicants finally claimed that the convicted officers should have been debarred from employment in public service.

On 10 June 2003 the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of 25 March 2002.

On 1 June 2005 the new Criminal Code (Law no. 5237) entered into force.

Subsequently, A.A., A.K. and İ.U. filed requests with the Denizli Assize Court asking that their convictions be revised in the light of the provisions of the new Criminal Code. They maintained that their acts should be considered as “inflicting minor injury”. They further submitted that they had been debarred from public service. A.A., A.K. and İ.U. finally noted that the execution of their prison sentences had been suspended pursuant to Law no. 4616, which governed conditional release, suspension of proceedings and execution of sentences in respect of offences committed before 23 April 1999.

On 24 November 2005 the Denizli Assize Court reviewed the sentences of A.A., A.K. and İ.U. and decided not to reverse its judgment of 25 March 2002.

A.A., A.K. and İ.U. appealed against the judgment of 24 November 2005.

According to the information in the case file based on the latest submissions by the parties, the case is still pending before the Court of Cassation.

The relevant provisions of the former Criminal Code, in force at the time of the death of the applicants’ son, read as follows:

“Any ... public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.

Where such conduct causes death, the sentence incurred under Article 452 (...) shall be increased by between one third and one half.”

“Any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years.”

“Where death results from an act of violence inflicted without the intention to kill the victim, (...) a sentence of eight years’ imprisonment shall be imposed on the offender.

If the death occurs as a result of the offender’s act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate, (...) a sentence of a minimum of five years of imprisonment shall be imposed on the offender.”

“If a public official commits an offence while on duty ... the sentence stipulated for that offence shall be increased by between one third and one half.”

“If the offence proscribed by Article 448 (...) is committed by two or more persons and if it is not established at the trial which one of those persons caused the death, the prison sentence to be imposed on any of the offenders is not more than two thirds and not less than half of the maximum prison sentence stipulated in the relevant provision of the Criminal Code (...)”

“If a court considers that, besides the mitigating statutory excuses, there are mitigating circumstances in favour of reducing the sentence imposed on an offender, (...) the prison sentences shall be reduced by up to one sixth.”

According to Law no. 4616, execution of sentences in respect of offences committed before 23 April 1999 could be suspended if no crime of the same or a more serious kind was committed by the offender within a five year period. Section 5 (a) of Law no. 4616 stipulated that execution of sentences in respect of the offence proscribed by, inter alia, Article 243 of the former Criminal Code could not be suspended.


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect)

Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at Christmas Island in the Pacific Ocean (November 1957–September 1958) of weapons many times more powerful than those discharged at Hiroshima and Nagasaki.

During the Christmas Island tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast.

The applicant alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast.

While the applicant’s father was serving as a catering assistant in the Royal Air Force, he was present at Christmas Island during four nuclear tests in 1957 and 1958. He also participated in the clean-up programme following the tests.

The applicant was born in 1966. In or about 1970 she was diagnosed as having leukaemia, a cancerous disease of the organs which manufacture blood. Her records of admission to hospital state, under the heading “Summary of Possible Causative Factors”, “Father – Radiation exposure”.

The applicant received chemotherapy treatment which lasted until she was 10 years old. Because of her illness and associated treatment she missed half of her primary school education and was unable to participate in sports or other normal childhood activities.

In December 1992 the applicant became aware of the contents of a report prepared by the British Nuclear Tests Veterans’ Association (“BNTVA”) indicating a high incidence of cancers including leukaemia in the children of Christmas Island veterans. The applicant is a member of the BNTVA.

She still has regular medical check-ups and is afraid to have children of her own in case they are born with a genetic predisposition to leukaemia.

In 1983 an Independent Advisory Group, chaired by Sir Douglas Black, was set up in the United Kingdom to investigate reports of an abnormally high number of children contracting leukaemia in the area around the nuclear power reactor at Sellafield (formerly called Windscale) in northern England. The Group confirmed that childhood leukaemia was more common in this area than normal, but was not able to determine the reason for this. One of the members of the Group, Dr Martin Gardner, went on to conduct three studies into the phenomenon. The third, published on 17 February 1990 (“the Gardner Report”), found a statistical association between the incidence of leukaemia in children from the town of Seascale, near Sellafield, and relatively high recorded doses of external whole-body radiation received by their fathers employed at the nuclear power plant prior to conception.

Following the publication of this report, two cases were brought against the authority responsible for the Sellafield reactor by plaintiffs who had contracted leukaemia and non-Hodgkin’s lymphoma respectively, claiming that their fathers’ employment at Sellafield had caused their illnesses. The two cases were heard concurrently in the High Court of Justice, London, on ninety days between October 1992 and June 1993. Over thirty expert witnesses gave oral evidence before the court and approximately one hundred written reports were submitted, primarily directed at the question whether the statistical association found by Dr Gardner could be relied upon and was directly causal, as claimed by the plaintiffs.

Judgment was given by Mr Justice French on 8 October 1993.

He found, inter alia, that the Gardner Report was “a good study, well carried out and presented”. However, certain technical criticisms which had been made of it were valid so as to diminish confidence in its conclusions and underline the need to seek confirmation from other independent studies before relying on it. He did, however, find that the evidence bore out a strong prima facie association between paternal preconceptional irradiation and childhood leukaemia in Seascale, although considerable reserve was necessary before it could be concluded that there was a causal link.

Although the judge was content to assume that there was a heritable component to the plaintiffs’ diseases, he considered that this was very small. He placed particular reliance on studies of the children of survivors of the Nagasaki and Hiroshima bombings, which did not show any significant increase in leukaemia or non-Hodgkin’s lymphoma, and were therefore quite inconsistent with the Gardner hypothesis. One of the defendant’s witnesses, Sir Richard Doll, had referred to research emphasising the role of infection in causing childhood leukaemia, particularly in areas where unusual population mixing had occurred, as was the case in Seascale, which had a very mobile population of high socio-economic class situated in a remote rural area. The judge found that a theory of causation based on such factors, combined with chance, was no less plausible than the Gardner hypothesis.

In conclusion, he held that, “on the evidence before me, the scales tilt decisively in favour of the defendants, and the plaintiffs, therefore, have failed to satisfy me on the balance of probabilities that paternal preconceptional radiation was a material contributory cause of the Seascale excess or, it must follow, of [their diseases]” (Reay v. British Nuclear Fuels PLC; Hope v. British Nuclear Fuels PLC [1994] 5 Medical Law Reports 155; and see also ‘Childhood leukaemia and Sellafield: the legal cases’, Journal of Radiological Protection, vol. 14, no. 4, pp. 293–316).

On 14 January 1966 the United Kingdom lodged with the Secretary General of the Council of Europe the following declaration:

“… in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th of November 1950, … the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only …, for the period beginning on the 14th of January 1966, and ending on the 13th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe, subsequently to the 13th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto…”

A declaration under Article 46 of the Convention, recognising the Court’s jurisdiction subject to similar conditions, was filed on the same day. Both declarations have been renewed on several occasions subsequently.


The applicant, the Zagreb Archdiocese (Nadbiskupija Zagrebačka), is a juristic person whose seat is in Zagreb, Croatia. It is represented before the Court by Zvjezdana Znidarčić-Begović, a lawyer practising in Zagreb, Croatia.

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

On 7 June 1993 the Zagreb Archdiocese, acting through its legal representative, lodged with the Ministry of Culture of the Republic of Slovenia a claim for restitution of castle Mokrice, its outbuildings and surrounding estate together with related movables and works of art. It based its claim on sections 14 and 54 of the Denationalisation Act 1991. The castle and its estate are located on the territory of present-day Slovenia and were purchased in 1937 by the Zagreb Archdiocese Seminary. They were nationalized after the Second World War by Yugoslav authorities. In 1988, the castle and part of the estate were classified as Slovenian cultural and natural monuments.

On 25 July 1994 the Ministry of Culture dismissed the claim for restitution on the ground that section 14 of the Denationalisation Act 1991 gave the right to restitution of expropriated property to “churches and other religious communities, their institutions and orders, operating on the territory of Slovenia” on 7 December 1991, the date of the entry into force of the Act. It was generally known, however, that at that time the Zagreb Archdiocese exercised its activities in Croatia. The Zagreb Archdiocese was therefore not entitled to restitution. Further, the Ministry of Culture separated and transferred a part of the claim concerning a part of the surrounding land and certain movables to the Municipality of Brežice as the competent authority.

On 25 August 1994 the applicant instituted administrative litigation with the Supreme Court, asserting that the claim for the restitution of the property emanated from the Zagreb Archdiocese as part of the Catholic Church and the catholic religious community. It was clear that, regardless of its internal organisation, the Catholic Church was entitled to restitution under the Denationalisation Act 1991. Moreover, the Razkrižje parish, located on Slovenian territory, belonged, in ecclesiastical administrative terms, to the Zagreb Archdiocese. This meant that the Zagreb Archdiocese was “operating on Slovenian territory” within the meaning of section 14 of the Denationalisation Act 1991 and was therefore entitled to restitution.

By a judgment of 23 January 1997, the Supreme Court rejected the applicant's claim and upheld the decision of the Ministry of Culture, holding that section 14 of the Denationalisation Act 1991, with special reference to the concept of “churches and other religious communities, their institutions and orders, operating on Slovenian territory”, should be interpreted narrowly.

It transpired from that provision that it was not the universal Catholic Church but its constituent juristic persons operating on the territory of Slovenia and registered as religious communities under the Legal Status of Religious Communities in the Republic of Slovenia Act 1967 that were entitled to restitution. The Catholic Church, as a much wider entity, did not therefore satisfy this criterion.

The Supreme Court also rejected the Zagreb Archdiocese's argument that the presence on Slovenian territory of a single parish belonging to the applicant in accordance with the internal organisation of the Catholic Church justified its claim to be operating on Slovenian territory. It held that this was not sufficient for the applicant to qualify as a Slovenian juristic person, since the greater part of its activities took place in another State where its seat was located and to the jurisdiction of which it was subject.

On 9 May 1997 the applicant lodged a constitutional appeal with the Constitutional Court, alleging that the Zagreb Archdiocese was a part of the Roman Catholic Church and that its internal organisation was regulated by the Code of canon law (Codex iuris canonici), promulgated on 25 January 1983. According to the provisions of this code, the supreme authority regulating the ownership of property was vested in the Pope. Since Article 7 of the Slovenian Constitution provided for the separation of Church and State and recognised their equality, this implied recognition of the internal organisation of the Catholic Church under the Code of canon law. There can consequently be no doubt that the Catholic Church was entitled to restitution. The decision of the Supreme Court, moreover, violated the right to own property, as protected by Article 67 of the Constitution.

On 30 November 1999 the Constitutional Court declared the applicant's constitutional appeal inadmissible, on the ground that it had no jurisdiction to review application of the law by ordinary courts. It found that the applicant essentially contested the Supreme Court's refusal to take into account the Code of canon law in determining the applicant's right to restitution. The Supreme Court's interpretation of the law was reasoned and there was no indication that its conclusions were arbitrary or in breach of human rights and fundamental freedoms. The decision was served on the applicant's lawyer on 21 December 1999.

The Constitution (Ustava Republike Slovenije, Official Gazette no. 33/91)

“The State and religious communities shall be separate. Religious communities shall enjoy equal rights; they shall pursue their activities freely. ”

“The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social and environmental function. (...) ”

The Denationalisation Act 1991 (Zakon o denacionalizaciji, Official Journal no. 27/91, with amendments)

At the time of the adoption of the Act, its sections 3, 4, 5, 10 and 13 limited the right to restitution of expropriated property to natural persons. The only exception were churches and religious communities, which were expressly recognised as beneficiaries under section 14 of the Act (see below). By the Constitutional Court's decision of 4 March 1993 (see below), the right to restitution was extended to all domestic juristic persons.

The conditions and the mode of denationalisation are determined by this Act. ”

“The right to recovery of property is hereby given to churches and other religious communities, their institutions and orders operating on the territory of the Republic of Slovenia at the time of the coming into effect of this Act. ”

The Ministry of Culture shall decide on denationalisation of objects specified in (...) of this Act (...)”

The Constitutional Court's case-law

On 4 March 1993 the Constitutional Court adopted a decision in a case brought by three legal persons (not party to the proceedings in this case) who challenged the constitutionality of several provisions of the Denationalisation Act 1991 (U-I-25/92). It declared that the restriction of the right to restitution to natural persons and only certain legal persons was unconstitutional. By altering the wording of sections 3, 4, 5, 10 and 13 of the Act, the Constitutional Court extended the right to restitution to all Slovenian legal persons. It held that section 14 thus acquired a new meaning. The Constitutional Court reasoned that:

“...the provision of section 14 is no longer contrary to the Constitution, because it does no longer have the function of providing a legislative basis for denationalisation claims of churches and other religious communities, their institutions and orders. With the annulment (...) of the pertinent legislative provisions, this provision was given a different content. It only means that under this legislative provision the right to restitution of property is accorded only to those churches and other religious communities, their institutions and orders, that were operating on Slovenian territory at the time of the adoption of the Denationalisation Act 1991...”


Violation of Art. 10;Violation of Art. 5-1;Remainder inadmissible;Costs and expenses (Convention proceedings) - claim dismissed

David Thór Björgvinsson;Wilhelmina Thomassen

The applicant was born in 1975 and lives in Amsterdam.

On 30 March 2000 the Amsterdam Regional Court (arrondissementsrechtbank) convicted three accused, Messrs K., Van S. and H., of arms trafficking. In the criminal investigation into the offences at issue, the Amsterdam police had stated that an arsenal of weapons had been found by chance: the caretaker of a building situated on the Nachtwachtlaan in Amsterdam had contacted the police when water was leaking from one of the flats in the building, whose occupants were absent. With the aid of two locksmiths, the police had gained entry to the flat and in the subsequent search for the source of the leak, the weapons had been found.

The accused lodged an appeal against the judgment of the Regional Court.

On 12 and 13 September 2000 the daily newspaper Sp!ts published two articles, written by the applicant and his colleague Ms S., in which doubts were expressed about the amount of coincidence allegedly involved in the finding of the weapons. The article of 13 September 2000, entitled “Chance Hit or Perfect Shot?” (“Toevalstreffer of loepzuiver schot?”), quotes an unnamed policeman of the Amsterdam force as commenting in respect of the flooding, “That is what we made out of it. Sometimes you just need a breakthrough in an investigation” (“Dat hebben we er maar van gemaakt. Soms heb je net even een doorbraak nodig in je onderzoek”).

In the proceedings on appeal against K., Van S. and H., the applicant and Ms S. were summonsed to appear as witnesses at the request of the defence. At the first hearing before the Amsterdam Court of Appeal (gerechtshof) on 22 September 2000 in the cases against Van S. and K., the applicant – who was assisted by counsel – stated inter alia that he knew that the policeman, whom he had quoted verbatim in the article of 13 September 2000, had been involved in a previous investigation against K. When the applicant was asked whether that policeman was also involved in the investigation of the flat or was aware of that investigation, he invoked his right of non-disclosure (verschoningsrecht). Counsel for the defence argued that both the individual interest of the accused – on whom a custodial sentence had been imposed as a result of the investigation carried out by the police – and the interest of criminal justice in the Netherlands outweighed the applicant's interest in not disclosing his source. The Advocate General also expressed as his opinion that the applicant could not invoke a right of non-disclosure. He stated in addition that the source, if his name was made known, had nothing to fear from either the police or the public prosecution service.

After having deliberated, the Court of Appeal considered that, if the statement made by the police officer to the applicant was correct, this might affect the conviction of the accused. It also affected the integrity of the police and judicial authorities. For these reasons, the Court of Appeal held that the applicant was to reply to the question whether his source had been involved in the investigation of the flat and had been aware of that investigation. The President of the court further reminded the applicant that the court was empowered to order his detention for failure to comply with a judicial order (gijzeling). Upon this, the applicant replied that his source had both been aware of, and involved in, the investigation of the flat.

Asked by counsel for the accused to reveal the identity of his source, the applicant once again invoked his right of non-disclosure. Counsel for the applicant submitted that he was justified in so doing, given that disclosing the identity of his source would render it impossible for the applicant to work as a journalist in the future since sources would no longer approach him. The interests of the journalist and of freedom of expression outweighed other interests. Moreover, as the criminal charges at issue concerned only arms trafficking and not, for example, a multiple homicide, it was disproportionate to require the applicant to name his source. It also went against the principle of subsidiarity, since there were other ways in which the identity of the source could be discovered.

In reply, the Advocate General stated that journalists exposed obvious wrongs (kennelijke misstanden) in society. Where they chose to do so, they should also face the consequences. The applicant was the only witness who could clarify whether or not the three accused had been wrongly convicted. In the present case, where official records, drawn up on oath of office (ambtseed) by police officers, and the integrity of the judicial authorities were at stake, the applicant must reveal the identity of his source. It could not be the case that, in order to trace this identity, every member of the Amsterdam police force should be heard, bearing in mind that all officers in the case against K. had already been heard by the investigating judge (rechter-commissaris).

Having deliberated, the Court of Appeal decided that the applicant was to reveal the identity of his source, for the same reasons as it had held that he had to reply to the question of his source's involvement in the investigation. The applicant invoked his right to remain silent (zwijgrecht), upon which the court ordered his immediate detention for a maximum of 30 days. No legal remedy lay against the decision to detain the applicant (Article 294 § 3 of the Code of Criminal Procedure – Wetboek van Strafvordering, “CCP”).

When questioned by counsel for the accused, the applicant's colleague, Ms S., stated that she was aware of the identity of the source, but that she had never met him in person. Having regard to this last fact, as well as to the fact that the journalist who had had direct contact with the source – i.e. the applicant – had already been placed in detention, the Court of Appeal considered that Ms S. was not obliged to reveal the identity of the source.

The applicant was served with an unreasoned decision on 25 September 2000. On 27 September 2000 he was handed a copy of the record of the hearing of 22 September, containing the decisions made by the Court of Appeal at that hearing and the reasons for them.

Late on 22 September 2000 the applicant lodged a request with the Court of Appeal to be released from detention. Prior to the examination of this request on 27 September 2000, the applicant was able to consult his lawyer only once, namely in the evening of 25 September. Requests to visit the applicant on 22, 23, 24, (the afternoon of) 25, 26 and 27 September were refused. The request for release was dealt with by the Court of Appeal in chambers (raadkamer), by the same judges who had ordered his detention.

At the hearing in chambers on 27 September 2000, the Advocate General reported that, following the applicant's statements at the hearing on 22 September, a police inspector had carried out an internal investigation, which had revealed that only eight police officers had been involved in both the first and the second investigation into the accused K. All these officers had made sworn affidavits to the effect that they had never been in contact with the applicant.

Informed of the outcome of the internal police investigation, the applicant insisted that he did not want to reveal the identity of his source. He stated that he was a journalist and that he might as well give up on that career if he started revealing his sources; no sources wanting to remain anonymous would any longer be willing to provide him with tip-offs. The applicant was informed by the President of the Court of Appeal that the right of non-disclosure was not absolute, and that more weighty interests could be at stake. In the present case, long prison sentences had been imposed on the three accused, partly on the basis of official records drawn up by police officers. The applicant replied that he was willing to state only that his source was not one of the police officers who had made sworn affidavits in the internal police investigation.

Counsel for the applicant argued that the journalist should be the last, rather than the first, means of arriving at the truth. The witnesses, whose examination had been requested by the three accused, ought to be heard first. Those witnesses could be confronted with the articles published in Sp!ts as well as with the article which had appeared in the weekly news magazine Vrij Nederland on 8 January 2000. This latter article had also suggested that the flooding of the flat had been staged, and the author had informed counsel for the applicant that the information contained in the article had not come from the same source as the one relied on by the applicant. Counsel for the applicant further posited that the State Criminal Investigation Department (Rijksrecherche) could carry out an investigation of the police force. Finally, it was for the Court of Appeal to assess the value of the article written by the applicant – that court could also decide to disregard it.

By decision of 28 September 2000, the Court of Appeal refused the applicant's request for his detention to be lifted. It repeated that the interests of the accused and of the integrity of the police and the judicial authorities outweighed the interest of the applicant in not having to disclose the identity of his source. Having regard to the outcome of the internal police investigation, as well as to the fact that an appeal made by the police commissioner for the applicant's source to come forward had not produced any results, the Court of Appeal considered it unlikely that an investigation by the State Criminal Investigation Department would clarify, within a reasonable time, the cause of the flooding, quite apart from the fact that such an investigation would seriously delay the criminal proceedings against K., Van S. and H. The Court of Appeal similarly rejected the suggestion to hear the witnesses proposed by the defence first, given that those witnesses had already been heard extensively about the point in issue. For these reasons, it could not be held that the detention of the applicant breached the principles of proportionality and subsidiarity.

The Court of Appeal further considered that the applicant's objections against the order for his detention as given at the hearing of 22 September 2000 did not require examination since no appeal lay against such order. It also rejected the argument that the order had not been served on the applicant within 24 hours, since – as appeared from the record of that hearing of 22 September – he had been informed of the order orally. Finally, the Court of Appeal held that the possibilities for contact between the applicant and his counsel were laid down in penitentiary legislation. It was not for the Court of Appeal to assess the application of that legislation.

The applicant lodged an appeal on points of law to the Supreme Court (Hoge Raad) against the decision of the Court of Appeal.

A second hearing before the Court of Appeal in the criminal proceedings against Van S. and H. took place on 9 October 2000. The applicant once again refused to reveal the identity of his source. Upon this, the Court of Appeal decided to lift the order for the applicant's detention. It considered that no support for, or confirmation of, the applicant's statement that he had received information from a police officer who had been involved in both investigations against the accused K. could be found in statements made by other persons and/or in the contents of documents. On the contrary, the applicant's statement had been contradicted by ten police officers. Therefore, no credence could be attached to his statement. This being the case, the applicant's detention no longer served any purpose.

At the same hearing on 9 October 2000, and following the Court of Appeal's decision to lift the applicant's detention, counsel for the accused K. challenged (wraken) the Court of Appeal. A different chamber of the Court of Appeal upheld that challenge, also on 9 October 2000. It held that the opinion that the applicant's statement was not credible, as expressed by the Court of Appeal in the criminal proceedings against Van S. and H., might have a bearing on decisions which that court would be called upon to take in the criminal proceedings against K. This constituted an exceptional circumstance, providing an important indication for the conclusion that the accused's fear of a judge being prejudiced against him was objectively justified.

The criminal proceedings against the three accused continued on 30 October 2000 before the Court of Appeal in a new composition. The applicant was again heard as a witness, as were seven other journalists who had also published articles about the case against K. and the possibility of the flooding having been staged. The Court of Appeal also heard two plumbers and the caretaker of the building.

Subsequent to the decision to lift the order for his detention, the applicant withdrew his appeal on points of law as his release had rendered that appeal devoid of interest.

According to the Government, the criminal proceedings against K., Van S. and H. have been brought to a conclusion.

The applicant has submitted photocopies of two cuttings from print media.

The first is of a report in the mass circulation daily newspaper De Telegraaf, dated 24 September 1999. It is therein stated that following reports of flooding from a second flat in Amsterdam, police had found another large quantity of weaponry. Messrs K., Van S. and H., the accused in the applicant's case, were not at that time suspected of involvement; the weapons were thought to belong to a terrorist organisation. The report drew attention to the similarity between the Nachtwachtlaan case and this new case as regards the circumstances in which the weapons were found. It cited “police sources” as suggesting that intelligence services, possibly foreign, had engineered events in order to protect their informants.

The second, which is incomplete, is of an article that appeared on 8 January 2000 in the weekly magazine Vrij Nederland. It links the two events and cites an unnamed source as stating that they had in fact been engineered by the then Netherlands National Security Service (Binnenlandse Veiligheidsdienst – “the BVD”).

It appears that the report in De Telegraaf and the article in Vrij Nederland were both written by journalists other than the applicant.

The applicant has also submitted a printout of a page taken from the internet web site of the Amsterdam daily newspaper Het Parool, dated 27 September 2000. It quotes the two plumbers who were called in to repair the water leak as dismissing as nonsense all allegations that the damage had been caused deliberately; in actual fact, such leaks were very common in older buildings.

Provisions of the Code of Criminal Procedure relevant to the case provide as follows:

Article 218

“Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.”

Article 294

“1. If during the interrogation the witness refuses, for no lawful reason, to answer the questions put to him or to take the required oath or affirmation, the court shall, if the investigation urgently so requires, order his detention (gijzeling).

The witness and his counsel shall be heard about the reasons for his refusal before the order is given.

The detention order shall be valid for no more thirty days; the court shall at the same time order the time at which the witness is to be presented before it anew. No remedy shall lie against the order.

The court shall order the witness released from detention as soon as he has fulfilled his obligations or the investigation at the hearing is closed. It shall however have competence to order the witness released from detention whatever the state of the investigation, including at the request of the witness. Article 223 § 3 shall apply.

Articles 224 and 225 shall apply.”

Articles 223, 224 and 225, which are thus declared applicable to witnesses at the trial hearing, per se apply to witnesses heard by an investigating judge.

Article 223 § 3 provides, in relevant part, that the detained witness may appeal within three days after the official notification in writing of the decision against any refusal to order his release from detention and may appeal on points of law to the Supreme Court against any such refusal given on appeal.

Article 224 provides that the witness shall receive notification in writing within twenty-four hours of all decisions to order or extend his detention or to refuse his release from detention.

Article 225 provides that the witness shall have the right to consult counsel. His counsel shall have unrestricted access (vrije toegang) to him, be allowed to see him in private and exchange confidential correspondence with him, subject to detention rules and provided that the criminal investigation in which his evidence was sought not be delayed. Counsel shall also have access to any official records relating to the questioning of the witness and, if the criminal investigation admits of it, the remainder of the case file.

Although these provisions by their wording apply to proceedings at first instance before the Regional Court, by virtue of Article 415 they apply by analogy to appeal proceedings before the Court of Appeal.

The Guidelines on the position of the press in relation to police action (Leidraad over de positie van de pers bij politieoptreden) were issued by the Minister of Justice (Minister van Justitie) on 19 May 1988. At the time of the events complained of, they provided, in relevant part:

“7. Seizure of journalistic material

Journalistic material may be seized in cases described in the Code of Criminal Procedure. Journalists may be faced with seizure in two ways.

A. The police may, on the instructions of a public prosecutor (officier van justitie) or an assistant public prosecutor (hulpofficier van justitie) or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot.

There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed. In this situation, the journalist is arrested like any ordinary citizen.

If a prosecution ensues, it will be for the independent judge eventually to decide what is to be done with any seized – and unpublished – material.

B. Journalistic material may also be seized on the orders of an independent judge (the investigating judge), if such material may – in the judge's opinion – serve to clarify the truth in a preliminary judicial investigation (gerechtelijk vooronderzoek).

This section of the Guidelines was replaced with effect from 1 April 2002 by the “Directive on the application of coercive measures to journalists” (Aanwijzing toepassing dwangmiddelen bij journalisten), issued by the Board of Procurators General (College van procureursgeneraal). This directive makes extensive reference to the Court's case-law. If the protection of a journalist's source is at issue, the use of coercive measures must be in accordance with Article 10 § 2 with due regard to requirements of proportionality and subsidiarity.

In a civil case – brought by persons named in connection with alleged bribery against two journalists who had allegedly made use of information leaked by officials – the Supreme Court, reversing earlier case-law, held (judgment of 10 May 1996, Nederlandse Jurisprudentie (Netherlands Law Reports) 1996, no. 578):

“It follows from the said judgment [i.e. Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996prima facie case must be made out by the person who calls the journalist as a witness.

It is apparent from the decision of the Court of Appeal and the other documents contained in the case file that the present case is characterised in that, as stated by [the plaintiffs], the 'leaked' information relates to a criminal investigation into alleged bribery of a number of local government officials in the province of Limburg, in that information relating to the supposed involvement of [the plaintiffs] in such cases of bribery has already been made public and that [the plaintiffs] have sued [the newspaper] De Limburger for damages which they claim resulted therefrom (...). Accordingly, [the plaintiffs] have claimed no other interest in the disclosure of [the defendants'] sources than that they wish to know who has 'leaked', because they wish eventually to sue the State and the persons concerned themselves for damages and also to obtain an injunction against the persons concerned to restrain them from any further 'leaking'. However, the said judgment of the European Court of Human Rights compels the Supreme Court to find that this interest in itself is insufficient to counterbalance the weighty public interest which belongs to the protection of [the defendants'] sources.”

Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000. It states, in relevant part:

“[The Committee of Ministers] Recommends to the governments of member States:

to implement in their domestic law and practice the principles appended to this recommendation,

to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and

to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.

Appendix to Recommendation No. R (2000) 7

Principles concerning the right of journalists not to disclose their sources of information

Definitions

For the purposes of this Recommendation:

a. the term 'journalist' means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;

b. the term 'information' means any statement of fact, opinion or idea in the form of text, sound and/or picture;

c. the term 'source' means any person who provides information to a journalist;

d. the term 'information identifying a source' means, as far as this is likely to lead to the identification of a source:

i. the name and personal data as well as voice and image of a source, ii. the factual circumstances of acquiring information from a source by a journalist, iii. the unpublished content of the information provided by a source to a journalist, and iv. personal data of journalists and their employers related to their professional work.

Principle 1 (Right of non-disclosure of journalists)

Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.

Principle 2 (Right of non-disclosure of other persons)

Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.

Principle 3 (Limits to the right of non-disclosure)

a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and

ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:

- an overriding requirement of the need for disclosure is proved,

- the circumstances are of a sufficiently vital and serious nature,

- the necessity of the disclosure is identified as responding to a pressing social need, and

- member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.

c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.

Principle 4 (Alternative evidence to journalists' sources)

In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.

Principle 5 (Conditions concerning disclosures)

a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.

b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.

c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.

d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.

e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.

Principle 6 (Interception of communication, surveillance and judicial search and seizure)

a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:

i. interception orders or actions concerning communication or correspondence of journalists or their employers,

ii. surveillance orders or actions concerning journalists, their contacts or their employers, or

iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.

b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.

Principle 7 (Protection against self-incrimination)

The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.”

For the precise application of the Recommendation, the explanatory notes clarify the meaning of certain terms. As regards the term “sources” the explanation reads as follows:

“c. Source

Any person who provides information to a journalist shall be considered as his or her 'source'. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the 'potentially chilling effect' an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being 'provided' when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”


THE GYPSY COUNCIL and OTHERS v. THE UNITED KINGDOM

The applicants are:

The Gypsy Council for Education, Culture, Welfare and Civil Rights, an organisation affiliated to the International Romany Union, has its main office in Romford, Essex;

Friends, Families and Travellers, an organisation based in Brighton, Sussex;

Thomas O’Doherty, an Irish citizen born in 1937 and resident in York;

Terence Green, a British citizen born in 1966 and resident in Sutton, Surrey.

The first and second applicants are organisations which represent the interests of the gypsy/romany community of which the third and fourth applicants are members.

They are represented before the Court by The Community Law Partnership Solicitors, practising in Birmingham.

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

The Horsmonden Horse Fair is a significant cultural and social event in the life of Romany Gypsy community in the United Kingdom. It has been held at the Horsmonden Village Green in Kent on the second Sunday in September annually for the last 50 years, at least. The applicants claim that there is good reason to think that the event has taken place for the last 300 years. The majority of those who attend the fair are gypsies.

On 25 April 2000, the Parish Council that occupies the Village Green decided that the fair was to be henceforth cancelled. In July, pursuant to the Public Order Act 1986, as amended by the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), the Parish Council applied to the Chief Constable for the necessary steps to be taken. In a letter dated 7 August 2000, the Chief Constable applied to the Tunbridge Wells Borough Council (“the Borough Council”) under section 14A of the 1994 Act for a prohibition order to be made. He stated inter alia that he believed that a trespassory assembly of 20 or more people was likely to be held on the Village Green and:

“Based on previous years’ experience, concerns of residents and intelligence, I reasonably believe that serious disruption to the life of the community will result because of :

i. Incidents related to feuding groups of ‘travellers’ in 1997, 1998 and 1999, with an escalating level of policing required to prevent serious crime (200 officers in 1999).

ii. The racing of horses on the highway.

iii. The illegal and indiscriminate parking of cars throughout the village...

iv. Concerns over public health due to poor hygiene, litter, discarded nappies and clearing up;

v. Anti-social behaviour by visitors.

vi. Closure of local public houses and shops for fear of theft.

vii. Necessary road closures contributing to a negative financial impact in the area.

viii. The threat that ‘travellers’ will defy the cancellation.

ix. Fear expressed by residents...

x. A background level of increased crime which occurs over the event weekend.

xi. The normal social interactions between villagers being suspended as a consequence of the sheer volume of visiting ‘travellers’.”

The Chief Constable concluded that this made it necessary to apply for the prohibition order so that effective policing could be carried out.

At a council meeting on 14 August 2000, the Borough Council accepted the recommendation of the director of operational services that the Borough Council should seek the approval of the Secretary of State in the making of an order. The main reason that the Borough Council gave for issuing the Prohibition Order was that the fair “may result in serious disruption to the life of the community in the vicinity of the prohibited area.”

On behalf of the Secretary of State, the Home Office Minister, with the recommendation of the senior officer of the Home Office’s public order section, gave consent to the application for the Prohibition Order. The Order was then issued on 4 September 2000 in accordance with section 14A of the Criminal Justice and Public Order Act 1994 prohibiting any “trespassory assembly” within a 5 mile radius of Horsmonden Village Green beginning at 18.00 hours on Thursday, 7 September 2000 and terminating at 06.00 hours on Monday, 11 September 2000.

Notwithstanding the prohibition order, on 31 August 2000, the Kent police gave consent to the conduct of a limited parade on Sunday, 10 September 2000, in Horsmonden.

In response to the prohibition order, the first applicant in this case, the Gypsy Council, issued proceedings in the High Court applying for judicial review on 5 September 2000. The applicant sought to quash the prohibition order, claiming that the Secretary of State and the Borough Council had made their decision to issue the order by considering both irrelevant factors and failing to consider factors that were in fact relevant. They alleged that there had been no evidence to support claims of risk to safety or disruption to the local community and no consideration given to alternative ways in which the fair might have been staged on the site. Among the relevant factors that the first applicant claimed the respondents failed to take into account were the applicants’ rights under Articles 8, 11, and 14 of the European Convention on Human Rights and the Framework Convention for the Protection of National Minorities.

The case was heard on an expedited basis before Deputy Judge Pannick QC, who granted permission to apply for judicial review and heard the application on 7 September 2000. Having heard the parties, the Deputy Judge dismissed the application seeking to quash the prohibition order. He found that sufficient relevant information was before both the Borough Council and the Home Secretary to enable them to properly exercise their discretion in deciding whether to issue the order. The letter of the Chief Constable set out the concerns that serious disruption to the community would result. He stated that Borough Council were entitled to think that the need to avoid disruption to the local settled community should take priority. He considered that the fact that the Romany Gypsy Community could go to an alternative site some 20 miles away at Dartford, which was approved by the local authority and the police, served to limit the impact upon the Romany Gypsy community. He also found that there was no basis for the argument that the European Convention on Human Rights was not taken into account. He noted that Articles 8 and 11 of the Convention recognised that a balance had to be struck between the interests of the individual, in this case, the interests of the gypsy community and the interests of society generally, but found no reason on that basis to interfere on public law grounds with the assessment reached by the Council and Secretary of State in light of the advice from the Chief Constable. He rejected the first applicant’s request for leave to appeal. The first applicant was advised by counsel that no further remedies were available.

Subsequently, on Sunday, 10 September 2000, a parade took place at Horsmonden, which was limited by the police to only 60 persons while measures taken by the police controlling entry to the village severely restricted the numbers of persons from the gypsy community wishing to watch the parade. An alternative fair apparently took place peacefully the same day at Dartford attended by an estimated 1000 gypsies.

Section 14A of the Public Order Act 1986 as amended by the Criminal Justice and Public Order Act 1994

“(1) If at any time the chief office of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only limited right of access and that the assembly--

(a) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s rights of access, and

(b) may result–

(i) in serious disruption to the life of the community, or

(ii) where the land, or a building on monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument,

he may apply to the council for the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or part of it, as specified.

(2) On receiving such an application, a council may--

(a) in England and Wales, with the consent of the Secretary of State, make an order either in the terms of the application or with such modifications as may be approved by the Secretary of State...

In this section and sections 14B and 14C – ‘assembly’ means an assembly of 20 or more persons;

‘limited’, in relation to a right of access by the public to land, means that their use of it is restricted to use for a particular purpose (as in the case if a highway or road) or is subject to other restrictions;

‘occupier’ means–

(a) in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; ...”