No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1978 and lives in Helsinki.

The applicant is a journalist with a nationwide evening newspaper, IltaSanomat. On 8 July 2004 Ilta-Sanomat published an article, written by the applicant, concerning the investigation into a homicide which had been committed a few days earlier. The article referred to K.U., a well-known Finnish businessman. The front page of the edition carried a headline: “Cruel killing in Vantaa: The executed man had connections with K.U.?” A photograph of K.U. also appeared on the front page. The article itself was entitled: “The victim of the Vantaa homicide had connections with K.U.?” Under a smaller heading, “The suspect in the cruel execution killing is a former member of the [motorcycle gang]”, the article read:

“[P.O.], who was brutally killed in Vantaa, may have had connections with the businessman [K.U.]. In 2002 [P.O.] was captured trying to smuggle bags containing money from Estonia into Finland. The police suspect that those bags [with contents] belonged to [K.U.].

The incident is currently pending before the prosecutor for the consideration of charges. [P.O.] is suspected of an aggravated receiving offence and [K.U.] of aggravated debtor’s fraud in that connection.

Other suspects besides [P.O.] and [K.U.] have also been exposed regarding that case. In practice, [P.O.] is being considered as a suspected receiver.

The leader of the investigation, criminal inspector [M.I.] of the National Bureau of Investigation [(keskusrikospoliisi, centralkriminalpolisen)], says that the [K.U.] –connection is a part of the investigation into the Vantaa homicide.”

Under the following subheading “The suspect admitted to being at the scene” the article went on:

“The police have detained a 39-year old man as a suspect in [P.O.’s] murder. ‒ In the light of the current evidence, the detained person has no connection with [K.U.], says [the inspector].”

The article continued with information concerning the detained person and the ongoing investigation into the homicide. It quoted the investigator’s statement that it was possible that the suspect had been acting under commission which, according to the applicant, implied the possibility of a contract killing.

The article was illustrated by a photograph, apparently taken in the vicinity of the crime scene.

Next to the article there was a separate information column concerning K.U.’s previous conviction for economic crimes and his academic achievements. Under a heading: “Who?” the column reproduced a photograph of K.U., taken at the public defence of his doctoral thesis.

On the same date the same information was published in the other evening newspaper Iltalehti in the form of an interview given by K.U.

On 11 April 2006 the public prosecutor preferred charges against the applicant and H.S., the newspaper’s editor-in-chief at the time. In his indictment the prosecutor maintained that by writing and allowing publication of the above article, the applicant and H.S. had given false information about K.U. in a manner that had been conducive to causing him suffering and damage and to subjecting him to contempt, and that they had also disparaged him in other ways. The prosecutor did not allege that the information imparted in the article had been false as such, but contended, inter alia, that the combination of large headings with question marks, the text of the article, the photographs of K.U. and his personal profile had aimed to insinuate to the readership that K.U. might have had a motive to commission the killing.

K.U., for his part, requested that the applicant and H.S. be punished and claimed compensation for suffering and legal costs in the same proceedings. He contended that the defendants had unlawfully connected him with murder in Finland’s largest evening newspaper. The use of his photograph, taken at the public defence of his doctoral thesis, had added to his suffering as he was thus defamed as an academic, which was to be his future career. According to K.U., the worst part of the criminal act had been the combination of the heading and his photograph, and the image thus created in the minds of those people who had not read the article itself. The defendants had sought to profit by their act. In addition to the permanent stigma, K.U. maintained that the offence had brought shame and distress to his family.

The applicant and H.S. contested the charge and the civil claims. Their main arguments were the following. The article did not contain any false information, nor could it have disparaged K.U. or caused him suffering. The latter point was highlighted by the fact that K.U. had himself given an interview concerning the same matter to another evening newspaper published on the same date. The article concerned a criminal investigation of general interest and was based on information given by the authorities. K.U. was a public figure and his connection with P.O. had been an issue of general interest and significance in itself. By pressing charges the prosecutor had unnecessarily interfered with the defendants’ freedom of expression, protected by the Constitution and Article 10 of the Convention.

When heard in person at the District Court’s oral hearing H.S. submitted, inter alia, that K.U. had contacted him after the article had been published. He had been very hurt and upset. H.S. had then offered him the possibility of rectification. According to the documents, K.U. had turned down that offer.

On 25 August 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) issued its judgment. It convicted the applicant and H.S. of defamation pursuant to Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. The applicant was sentenced to 30 day-fines amounting to a total of 720 euros (EUR). She was also ordered to pay K.U., jointly and severally with H.S., EUR 2,000 for suffering and EUR 1,500 in legal costs.

In its reasons the court noted that it had to examine the conflicting interests of freedom of expression and the right to privacy, referring to sections 10 and 12 of the Constitution and Article 10 of the Convention. It also made reference to the Supreme Court precedent no. KKO:2006:20, where that court found that the freedom of expression did not justify violation of a person’s honour or private life. In assessing the article written by the applicant the court found as follows:

“It is undisputed that in the summer of 2004 [K.U.] was a public figure. It is also undisputed that the article did not contain factual errors. Thus, each piece of information contained therein was accurate.

The District Court has to assess whether the article included such insinuations that have been conducive to causing suffering or contempt or if it was disparaging in other aspects.

The article ... covered the pre-trial investigation of a homicide which had taken place a few days earlier, as well as another large-scale case concerning economic crime, already pending before the prosecutor. The same person had been the victim of the homicide and one of the suspects in the economic offences. [K.U.] had known the victim of the homicide and was also one of the suspects in the case concerning economic offences.

The defendants have pleaded, inter alia, that the newspaper had been obliged to report on crime. The article ... had emphasised the connection between [K.U.] and the victim of the homicide. In the District Court’s view no such circumstances have emerged in these proceedings which would have linked the fact that [K.U.] had known the victim of the homicide to his public activities. Nor has it been established that the fact that [K.U.] knew the victim ... had been of general interest or that this piece of news had had such significance to society that it had been important to publish it.”

The District Court concluded:

“The most central topics of the article ... had been the connection with the victim of the homicide and [K.U.], suspicions of economic offences, organised crime, and a possible contract killing. The use of the heading ‘The victim of the Vantaa homicide had connections with [K.U.]?’ along with the background information on [K.U.] under a title ‘Who?’, illustrated with his photograph, had personified the whole article to [K.U.] Although the heading of the article carried a question mark and the first paragraph in the text mentioned that the victim might [italics added here] have had connections with [K.U.], the text does not provide an immediate answer to that question, nor does it state clearly that the victim and [K.U.] had known each other only from other circumstances. The article had left the answers open. As the text dealt with the connection between the victim of the homicide and [K.U.] and, at the end, a possible contract killing, [K.U.] had also been connected with a contract killing.

Connecting a person groundlessly with a contract killing violates his honour.

By combining information received and statements given by the head of the investigation and by mixing two different criminal investigations the article has given an ambiguous picture of the connection between those cases. The headings and the information concentrating on [K.U.]’s personal profile had made [K.U.] the main common feature of the crimes.

The District Court finds that in the article [K.U.] had been linked with a homicide in a manner that insinuated a connection between [K.U.] and the commission of the homicide and a contract killing. Such an insinuation violates [K.U.’s] honour and has caused him suffering.”

The District Court was composed of one professional judge and three lay judges. One of the lay judges was in favour of an acquittal. In his dissenting opinion he stressed the fact that all the information presented in the article had been accurate. In his view the mere fact that a party to the case, his family or friends were shocked about the news coverage, or that the readers of a newspaper were not fully able to comprehend the text, could not constitute defamation.

The applicant and H.S. appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten), relying mainly on their previous arguments. They also contested the lower court’s interpretation of the law.

On 14 November 2007 the Court of Appeal upheld the District Court’s judgment. In its reasoning the appellate court reiterated that giving false information or making false insinuations about another person in a manner conducive to causing damage or suffering to that person, or subjecting that person to contempt, constituted defamation as set out in Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. It referred to the relevant Government Bill for the amendment of that provision (HE 184/1999 vp) in stating that it was characteristic of that offence to concern false factual information or a false insinuation bearing a close resemblance to factual information. In principle, the veracity of an argument may be reviewed afterwards. If an argument is accurate, or if the insinuation concerns a fact, the act may nevertheless be punishable as defamation under point 2 of the provision, if the information is given or insinuation made with a view to disparaging another person deliberately.

The court then found that:

“It is undisputed that the information in the article published in Ilta-Sanomat on 8 July 2004 concerning two different criminal matters was accurate as such. The common feature of those matters has been the fact that [K.U.] and the victim of the homicide had been suspects in one of the criminal cases mentioned in the article. The headings of the article, the text, and the photographs of [K.U.] on the cover and on the article have, however, created a connection falsely implying that [K.U.] was somehow involved in the homicide. The heading of the article and its tone were such that the fact that [K.U.] was not, strictly speaking, an accomplice to the homicide only became clear on reading through the article more closely. It followed that Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code was to be applied in this case, as indicated by the District Court.”

The Court of Appeal went on to assess in detail whether the defendants’ conduct could be regarded as intentional. The court found that the applicant was a professional journalist and that she must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering. Reaching thus an affirmative conclusion, the court found no reason to deviate from the outcome of the lower court’s judgment.

On 7 November 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.

The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:

“Section 10 – The right to privacy

Everyone’s private life, honour and the sanctity of the home are guaranteed. ...

Section 12 – Freedom of expression and right of access to information

Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”

Chapter 24, Article 9, paragraphs 1 and 2, of the Penal Code (rikoslaki, strafflagen; Act no. 531/2000) provide:

“A person who

1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or

2) disparages another person in a manner other than referred to in point 1

shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months.

Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.”

Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974, as amended by Act no. 509/2004), provides that a person may be awarded compensation for suffering if, inter alia, his or her liberty, peace, honour, or private life has been violated through a punishable act. In assessing the level of that suffering the nature of the violation, the status of the victim, the relationship between the offender and the victim as well as the possible public exposure of the violation are to be taken into account.

According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering arising from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. In the recommendation of the Personal Injury Advisory Board (Henkilövahinkoasiain neuvottelukunta, Delegationen för personskade-ärenden) in 2008, compensation awards for distress in defamation cases can go up to EUR 10,000 and in cases concerning dissemination of information violating personal privacy, up to EUR 5,000. On the other hand, the maximum award for, for example, attempted manslaughter, murder or killing varies between EUR 3,000 and EUR 5,000.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

The applicant was born in 1958 and lives in Grozny, Chechen Republic.

According to the applicant, on 7 February 1999 the administrative authorities of the Leninskiy District of Grozny provided her with a housing allocation order no. 842 entitling her to occupy a oneroom municipal flat in Grozny.

In 2005 the applicant was registered as living in that flat.

In 2007 the authorities decided to conduct an examination of all allocation orders granting occupation of municipal accommodation. The applicant’s housing allocation order dated 7 February 1999 appeared suspicious to the authorities and they commissioned an expert to verify its authenticity. The expert concluded that the allocation order was a forged document. In particular, the order did not correspond to the date on which it had been issued and the impress of a seal on the order had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal.

Upon receipt of this information the administration of Grozny brought court proceedings against the applicant seeking to declare the allocation order of 7 February 1999 null and void and to evict her from the flat in question.

The applicant contested those claims. She submitted that the administration had issued her with the housing allocation order because she had been on the housing list and she was subsequently registered as living in that flat. She had not been aware of the fact that the order had not been printed in the printing office. She also asked to dismiss the claims as timebarred because according to domestic law the housing allocation order could be declared null and void within three years after its delivery.

The administration of the Leninskiy District of Grozny asked to grant the claims submitted by the administration of Grozny. The administration could not say whether the order had been in fact delivered to the applicant, since the archives had not been preserved. However, according to the civil servants of the administration, commissions on allocation of housing had been meeting once a month. The order no. 842 was issued on 7 February 1999. That would mean that 842 orders were issued from the beginning of 1999 until 7 February 1999. However, the administration of the Leninskiy District could not deliver such a number of housing allocation orders during one month.

On 24 February 2009 the Leninskiy District Court of Grozny (“the District Court”) declared the housing allocation order of 7 February 1999 null and void and issued an order to evict the applicant. In particular, the District Court held as follows:

“...It follows from the materials of the case that the housing allocation order No. 842 of 7 February 1999 in respect of accommodation situated in Grozny...in the name of Darsigova Ruket Magomedovna has been issued as an assignment of housing.

It follows from the expert certificate No. 11 of 11 April 2008 that the above order was sent for an expert examination and the experts concluded that the order no. 842 of 7 February 1999 ... did not correspond to the date on which it had been issued. The impress of a seal of the Leninskiy District of Grozny [on the order] had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal.

It follows from the expert report of 24 October 2008 no. 1397, 1398/1-2 that the formsheet of order No. 842 of 7 February 1999 had been made with the help of electrophotographic imaging on the copy machine. The colour used - dry toner.

Therefore, the court has established that the title document order no. 842 of 7 February 1999 ...had not been made typographically.

Those circumstances follow from the content of the statement of claim, parties’ submissions in the court, they have not been contested by the parties and are confirmed by evidence submitted [to the court].

The request by the Administration of Grozny for restauration of the three-year time-limit for lodging of their claim for declaring the order null should be granted.

The court has assessed the whole of evidence submitted by the parties and finds that it is possible to grant the claimant’s claim...”

In her appeal against the judgment of 24 February 2009 the applicant submitted that in taking the decision to evict her the District Court had not examined whether she had been in need of housing or not. In particular, the District Court had not taken into account that she had been provided with a one-room flat on the grounds that she had cumulated a very long term of service and had no other housing.

On 9 June 2009 the Supreme Court of the Republic of Chechnya (“the Supreme Court”) upheld that judgment. In particular, the Supreme Court held as follows:

It has been established in the court hearing that order No. 842 of 7 February 1999 issued by the administration of the Leninskiy District of Grozny to R.M. Darsigova and giving her the right to move in flat no. 40 at 42, Kadyrov street in Grozny was sent for an expert examination...The expert examination established that the order did not correspond to the date on which it had been issued. The impress of a seal of the Leninskiy District of Grozny [on the order] had been made with the help of an improvised cliché which in its turn had been made with a help of a computer on the basis of an impress of the authentic seal...

Having regards to the above, the court of first instance had concluded that the claims submitted by the administration of Grozny had to be granted. In such circumstances, the civil chamber does not find any grounds for quashing the court decision ...”

After her eviction the applicant returned living to her mother’s flat and on 26 July 2011 she was registered as living in that flat.


CASE OF METIN GÜLTEKİN AND OTHERS v. TURKEY

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)

Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković

The applicants were born in 1960, 1963, 1988 and 1986 respectively and live in Zonguldak. The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the fiancée of Mr Toğay Gültekin.

Toğay Gültekin was born in 1983 and started doing his compulsory military service on 22 August 2003 in the city of Kırklareli. At that time he had no known health problems.

On 17 March 2004 Toğay Gültekin was examined by a doctor at his regiment and the doctor decided to refer him to a hospital specialising in infectious diseases. On 22 March 2004 a doctor who examined him at his regiment’s infirmary referred him to Trakya University Hospital (“The University Hospital”) for suspected hepatitis or meningoencephalitis. The following day Toğay Gültekin was sent to the hospital in Edirne where, after a number of examinations were conducted, he was diagnosed with fulminant hepatitis (acute liver failure). A decision was taken on 24 March 2004 to send him to the Haydarpaşa GATA Hospital in Istanbul for a liver transplant operation. On arrival at the hospital in Istanbul the same afternoon he was put in the intensive care unit.

At 5.15 p.m. on 27 March 2004 he died at the GATA Hospital. No autopsy was performed.

An investigation was carried out at the military unit where Toğay Gültekin had been doing his military service. On 30 and 31 March 2004 a total of eleven military personnel who knew or had had dealings with Toğay Gültekin were questioned by their superiors.

The eleven military personnel all stated that Toğay Gültekin had spoken to his commanding officer on 16 February 2004 and told him that a friend of his had hepatitis and that he had suspected that he might also have contracted the same disease. His superior had then transferred him to the regiment’s infirmary where tests had been conducted, establishing that he did not have hepatitis.

One of the eleven military personnel was the doctor who had examined Toğay Gültekin in the regiment’s infirmary on 22 March 2004 (see paragraph 7 above). The doctor stated that on 22 March 2004 Toğay Gültekin had come to see him because he had been feeling unwell and the colour of his urine had been darker than usual. He had then sent Toğay Gültekin for a urine examination and when he had got the results back he had noticed a problem. The same day he had asked for Toğay Gültekin to be referred to the University Hospital.

The military officers who carried out the investigation concluded, on the basis of the statements referred to above, that the military authorities had acted in accordance with their duties when providing medical assistance to Toğay Gültekin and that there had been no fault attributable to them in his death.

On 28 September 2004 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court (“the Military Administrative Court”). They argued, in particular, that Toğay Gültekin had not received prompt or adequate medical care in his regiment.

The applicants submitted in their petition that, according to the official documents in their possession, Toğay Gültekin had been examined by a doctor attached to his regiment on 17 March 2004 and that the doctor had recommended his transfer to a hospital specialising in infectious diseases. Nevertheless, the military authorities had not followed that recommendation. When his condition had deteriorated he had been examined by another doctor at the regiment on 20 March 2004. However, that doctor had not sought to obtain blood or urine tests and had sent him back to his military unit. When Toğay Gültekin’s condition had deteriorated even further on 22 March 2004, he had been examined once again and this time a urine test had been carried out. The doctor who had evaluated the results of the test had considered that Toğay Gültekin might have hepatitis or meningoencephalitis and had asked for him to be referred to hospital. Nevertheless, Toğay Gültekin had still not been transferred to the hospital promptly and only the following day had he been put on a bus and sent to the hospital. The applicants argued that it had been these inordinate delays that had caused Toğay Gültekin’s death. They pointed out that Toğay Gültekin had been performing his military service and had thus not had the opportunity to leave his military unit and seek medical assistance of his own volition. Therefore, the authorities had been under an obligation to protect his well-being and to ensure timely medical treatment for him.

On 14 January 2005 the Ministry of Defence submitted its observations to the Military Administrative Court. Based on the testimonies of the soldiers from the same regiment (see paragraphs 9-11 above), it argued that on 16 February 2004 Toğay Gültekin had seen his superior and told his commanding officer that his friend had contracted hepatitis and that he suspected that he himself might have been infected as well. A blood test had been conducted, but the results had not revealed any abnormalities.

The Ministry of Defence alleged that Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004, but accepted that he had been examined by a doctor at the regiment’s infirmary on 20 March 2004 and then sent back to his military unit. It maintained that the military authorities had not acted in a negligent fashion when dealing with Toğay Gültekin’s medical problems.

In their replies to the Ministry of Defence the applicants submitted that there was no evidence to show that a blood test had been carried out on 16 February 2004. They also referred to the medical reports and stated that it had been clearly indicated in the records that Toğay Gültekin had seen the doctor at the infirmary on 17 March 2004 and that his referral to an infectious diseases clinic had been decided by that doctor.

During the proceedings the Military Administrative Court appointed three medical experts, namely two professors and an associate professor from the infectious diseases department of the Gazi University Medical School, in order to clarify whether the military authorities had acted negligently. The medical experts reached the following conclusion in their report of 20 September 2005:

“... An examination of the documents and other information in the file shows that Toğay Gültekin started his military service on 22 August 2003. On 2 January 2004 he was treated for a retractile testicle at Çorlu Military Hospital. On 5 January 2004 he was prescribed medication at the regiment’s infirmary for an upper respiratory tract infection. On 17 March 2004 the regimental infirmary doctor decided to refer him to the Çorlu Military Hospital’s infectious diseases department, but that was not done. On 20 March 2004 he was diagnosed with and treated for an infection of the upper respiratory tract. On 22 March 2004 he was referred to the University Hospital with suspected hepatitis and he was sent there. On 23 March 2004 he was diagnosed with fulminant hepatitis. On 24 March 2004 he was transferred to the GATA Research Hospital in Haydarpaşa where he died on 27 March 2004 as a result of fulminant hepatitis.

Two of the causes of fulminant hepatitis are hepatitis A virus and hepatitis B virus. Hepatitis A may be contracted by drinking contaminated water and by eating raw vegetables and fruits. Hepatitis B spreads through sexual contact, or by coming into contact with infected blood by sharing personal items such as toothbrushes, razors, or needles. Military service, in itself, does not pose a special risk for hepatitis contamination.

Having examined the medical reports in the file, we consider it very likely that the first symptoms regarding Toğay Gültekin’s disease became obvious on 20 March 2004 and his condition then deteriorated for one week until his death. The first symptoms of the liver disease (acute liver failure) which is caused by hepatitis A and hepatitis B viruses include tiredness and general complaints which are not specific to any of the organs. They can be similar to the symptoms of upper respiratory tract infection. Only after developing typical symptoms, such as jaundice, does it become easier to diagnose.

The disease caused by these two viruses (hepatitis) can be more serious in adults. According to the medical reports in the file, Toğay Gültekin was contaminated with both hepatitis A and hepatitis B viruses within a short period of time and his liver was infected with both viruses at the same time. This is a condition which worsens the damage to the liver and increases the risk of fulminant hepatitis (fast-deteriorating acute liver failure). The mortality rate of fulminant hepatitis is 70% within the first week; a liver transplant is the sole method of ensuring patient survival. Normally, the patient would be kept in hospital under close observation.

Having taken cognisance of the documents in the file, we have not established any delays, fault or negligence in the medical treatment provided to Toğay Gültekin at the infirmary of his regiment, at the University Hospital or at the GATA Hospital in Haydarpaşa.”

The applicants lodged an objection to this report. They maintained that the authorities had acted negligently as they had delayed Toğay Gültekin’s transfer to hospital. Referring to the medical reports in the file, the applicants stated that although the doctor at the regiment had decided to refer Toğay Gültekin to an infectious diseases clinic on 17 March 2004, the military authorities had failed to comply with the doctor’s decision until 23 March 2004. The applicants also asked the Military Administrative Court to obtain an additional medical expert report.

On 26 October 2005 the Military Administrative Court dismissed the applicants’ claim. In its decision the court relied on the medical expert report summarised above (see paragraph 18), and concluded that no fault could be attributed to the authorities for Toğay Gültekin’s death. No mention was made in the decision of the applicants’ complaint regarding the failure to transfer Toğay Gültekin to hospital on 17 March 2004.

The applicants lodged a request for rectification of the Military Administrative Court’s decision and argued, inter alia, that if, as alleged, Toğay Gültekin had told his commanding officer on 16 February 2004 that he might have been infected with hepatitis (see paragraphs 9-11 above), his superior should have taken it seriously and referred him to hospital. However, there were no records showing that any action had been taken. They also pointed out that their complaints did not relate to the period following Toğay Gültekin’s transfer to the hospital, but to the authorities’ negligence in failing to refer Toğay Gültekin to hospital between 17 and 23 March 2004.

On 28 December 2005 the Military Administrative Court refused to entertain the rectification request lodged by the applicants.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1960 and lives in Riga.

He was arrested in July 1995 and in May 1998 he was convicted and sentenced to capital punishment. In June 1999, following the amendments to the Criminal Law Code, the appellate court converted the sentence of capital punishment into fifteen years’ imprisonment. The applicant started serving his sentence in a closed-type prison under the strictest (“lower”) regime (zemākais soda izciešanas režīms) (see “Relevant domestic law” below).

On 27 March 2001 the applicant was transferred to the “medium” regime in a closed-type prison (vidējais soda izciešanas režīms). In accordance with domestic law, the applicant was entitled to a list of rights (see “Relevant domestic law” below).

On 27 July 2005, while the applicant was serving his sentence in Pārlielupe Prison, the prison’s administrative commission decided to apply a more stringent regime to him and to transfer him to a closed-type prison under the “lower” regime. Relying on that decision, on 16 August 2005 the governor of Pārlielupe Prison recommended transferring the applicant to Daugavpils Prison owing to the fact that Pārlielupe Prison did not have appropriate facilities for him to continue serving his sentence under a more stringent regime.

On 5 September 2005, on an appeal by the applicant, the decision of the administrative commission was revoked by a decision of the Jelgava Court, which on 6 September 2005 was forwarded to Pārlielupe Prison. At the same time, on 5 September 2005 the Prisons Administration approved the recommendation by Pārlielupe Prison to transfer the applicant to Daugavpils Prison (see paragraph 8 above) and on 6 September 2005 the governor of Pārlielupe Prison issued an order to that effect.

On 18 October 2005 the order was executed despite the fact that the initial decision of 27 July 2005 had been revoked, and the applicant – who in the meantime had been admitted to the prison hospital – was transferred to Daugavpils Prison. During his stay in that prison the applicant was able to enjoy only a limited number of rights normally applicable to prisoners under the “medium” regime. In particular, he could not exercise his right to leave his cell for more than one hour a day, or his right to unrestricted access to the medical unit, prison shop, canteen and library.

On 20 October 2005 the management of Daugavpils Prison informed the Prisons Administration that they could not provide the facilities required under the “medium” regime.

On 26 October 2005 the Prisons Administration adopted a decision to transfer the applicant to Jēkabpils Prison to serve his sentence under the “medium” regime. That decision was executed on 4 November 2005.

It appears from the file on the applicant’s case before the administrative courts that on 27 September 2005 he raised an objection with the Prisons Administration about his transfer to Daugavpils Prison under a more stringent regime, but that the Prisons Administration dismissed it on 13 October 2005, and also dismissed a further complaint on 21 April 2006.

According to the Government’s submissions, on 17 October 2005 the applicant sent a complaint to the Prosecutor General’s Office, which forwarded it to the Specialised Multibranch Prosecutor’s Office. The latter then forwarded the complaint to the Prisons Administration.

On 20 December 2005 the Prisons Administration mentioned in a letter addressed to the applicant that his stay in Daugavpils Prison had been the result of the slow exchange of information between the courts, the prisons and the Prisons Administration.

On 26 October 2005 the applicant complained to the District Administrative Court that as a result of the unlawful activities of the Prisons Administration, he had been transferred to a prison in which he could not serve his sentence under the regime applicable to him.

Before initiating the administrative proceedings the District Administrative Court asked the applicant to pursue the appropriate outofcourt procedure by appealing against the negative decision of the Prisons Administration, which the applicant did in March 2006 (see paragraph 13 above).

After a series of procedural decisions, on 6 November 2007 the District Administrative Court found that the applicant’s transfer to Daugavpils Prison in order to serve his sentence under a stricter regime had been carried out without any lawful basis and awarded him 100 Latvian lati (LVL – 150 euros (EUR)) in compensation for non-pecuniary damage. Its finding was based on a comparison of the list of rights to which the applicant was entitled under the “medium” regime and the rights which he had actually enjoyed as a result of his unlawful transfer to more stringent prison conditions. The court also took into account the actions of the management of Daugavpils Prison and the duration of the applicant’s stay there.

The Regional Administrative Court partly upheld that decision, after analysing whether the applicant’s transfer to a more stringent regime amounted to a significant infringement of his rights under Article 3 of the Convention. The court established that in transferring him, the authorities had executed a decision which had been already revoked by the national courts, and that for a duration of eighteen days he had unlawfully been required to serve his sentence under a regime whereby he remained locked in a shared prison cell all day. According to the court, these conditions were aggravated by the fact that both the applicant and the authorities were aware that his transfer was unlawful. It held that he had suffered a serious infringement of his rights and accordingly awarded him LVL 300 (EUR 450) in compensation for non-pecuniary damage.

Following an appeal by the Prisons Administration, on 16 September 2009 the Senate of the Supreme Court quashed the appellate court’s decision and discontinued the administrative proceedings owing to the fact that the examination of decisions taken in the course of the execution of prison sentences did not fall within the jurisdiction of the administrative courts. The Senate also referred to section 16 of the Law on the Prosecutor’s Office, concerning the prosecuting authorities’ powers to initiate investigations into alleged violations of prisoners’ rights. In this connection the Senate mentioned that the applicant had lodged a complaint with the Prosecutor General’s Office about his transfer.

On 14 July 2010 the applicant was released from prison after completing his sentence.

On 15 March 2013 the Prisons Administration destroyed the applicant’s file on account of the expiry of the statutory archiving period.


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1988.

On 27 December 2011 the applicant applied for asylum and a residence permit in Sweden and claimed that she had arrived in Sweden on 11 December the same year. In an interview with the Migration Board (Migrationsverket), at which she was informed that a search in the European asylum fingerprint database EURODAC had revealed that she had applied for asylum in the Netherlands in December 2006, the applicant stated that she had arrived in Sweden in 2007 from the Netherlands and had remained illegally in Sweden since then. She had been afraid to contact the Swedish authorities since she did not want to be returned to the Netherlands as she would be sent onwards to Italy where she had no housing or opportunity to support herself. She wanted to remain in Sweden where cousins of hers were living.

As the applicant had applied for asylum in the Netherlands – under a different name and birth date – the Migration Board requested that that country take her back in accordance with the Dublin Regulation. The Dutch authorities refused, however, as she had previously applied for asylum in Italy, under a slightly different name than that given to the Board. The Italian authorities were then requested to take back the applicant. The Italian authorities did not reply to the request within the prescribed time-limit and were consequently, under Article 20(1)(c) of the Regulation, considered to have agreed to receive her. Accordingly, on 24 April 2012, the Migration Board dismissed the asylum application and decided to transfer the applicant to Italy.

However, the decision became time-barred before the transfer could be realised. On 30 November 2012 the applicant therefore applied for asylum and a residence permit in Sweden again. At an asylum interview in January 2013, which lasted for two and a half hours, she submitted essentially the following. In November 2004 her family had forced her to marry an older man against her will. At the time she had for about a year had a secret relationship with a boy from school. This relationship was revealed a few days after the forced marriage when the applicant and her boyfriend had tried to escape from Mogadishu together. They had been detected by her uncles when they had been sitting on the loading platform of a truck. Both she and her boyfriend had been beaten and thrown off the truck. She had sustained injuries to her hips and had been hospitalised for a few months. Thereafter she had lived at home until August 2005 when her father had considered that her health condition permitted her to move in with her husband. She had then contacted her boyfriend and they had fled together, first to Ethiopia and then to Sudan and eventually to Libya in order to take a boat to Italy. However, the boat had sunk and the boyfriend had died. Later, while in Sweden, she had learned that her father had died in 2010 and her mother in 2011. If returned to Somalia, the applicant claimed that she would have to return to the man whom she had been forced to marry, unless she were sentenced to death for fleeing the marriage and the country. These threats would be carried out by her uncles. The applicant further asserted that she lacked a male support network in Somalia and therefore risked being sexually assaulted. As a single woman, she would further not be able to rent accommodation or otherwise organise her life and would risk becoming a social outcast. She also invoked the generally dire humanitarian situation in Somalia and, in particular, claimed that she was unlikely to find the help still needed for her injured hips.

On 8 March 2013 the Migration Board rejected the applicant’s application for asylum and ordered her deportation to Somalia. At the outset, the Board found that she had failed to substantiate her identity, noting in particular that she had not submitted any identification papers and had previously applied for asylum in the Netherlands and Italy under different identities. However, it found it plausible that the applicant originated from Mogadishu. Noting that she had arrived in Sweden in 2007 but had not applied for asylum until the end of 2011 – and had thus not reported a need for protection during a period of more than four years – the Board called into question whether she had felt a real need for protection. Turning to the substantive allegations presented by the applicant in support of her application, the Board considered that they were marred with credibility issues. For example, in her initial asylum application in 2011, she had stated that she was unmarried. Only during the asylum investigation following her renewed application in November 2012 had she claimed that she had married in Somalia in November 2004. The Board found that the applicant had failed to provide a sufficient explanation for this, particularly given that this was a crucial part of her story. Furthermore, in 2011 she had only invoked the armed conflict in the country as grounds for asylum and had stated that she could not remember how she had sustained the hip injury since she had been very young at the time. She had then also said that she had stayed with a female friend in Mogadishu before leaving the country whereas she later claimed that she had lived with her parents and siblings.

The Board concluded that the applicant had failed to make plausible that she had been subjected to any ill-treatment by her relatives in Somalia and consequently had failed to show that she would lack a male support network there. It noted that, according to the applicant, her brother and uncles still lived in Mogadishu. Moreover, the Board examined the general situation in Mogadishu and the particular situation of women, based on information gathered at a fact-finding mission to the city in June 2012 and further information obtained thereafter, and considered that the circumstances were not of such severity that the applicant would be unable to return there, taking into account the finding that she had a male network to protect her. In this connection, the Board also noted that the applicant had not lived in a refugee camp before leaving the country and had not claimed that she would risk doing so upon return.

The applicant appealed to the Migration Court (Migrations-domstolen), maintaining her claims and adding, inter alia, the following. The security situation in Mogadishu was still very unstable and the particular situation of women in Somalia was extremely severe. She further asserted that, as her situation in Italy had been difficult, it was understandable that she had decided to apply for asylum under another identity in the Netherlands, in order to avoid being sent back. This had also been the reason why she had decided to stay illegally in Sweden. Moreover, she stated that the Migration Board had misunderstood her; she had stayed with a female friend in Sweden, not in Somalia where she had lived with her family. Furthermore, in her view, she was not married since she had not consented to the marriage or been present at the marriage ceremony. She submitted an x-ray image of her hip prostheses to show that she had been assaulted and injured.

On 4 June 2013 the Migration Court rejected the appeal, agreeing with the Migration Board’s reasoning and findings. The court subscribed to all the misgivings concerning credibility expressed by the Board. It added that, whereas the applicant initially had claimed to have been forcibly married in 2004, in a later submission to the Board she had stated that this had been decided by her father and her uncles in 2010. Since the applicant was in general not credible, the court did not believe her statement that she lacked a male support network in Somalia. Moreover, it considered that the submitted x-ray image did not show that the applicant had been subjected to ill-treatment in her home country.

By a decision of 15 July 2013 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.

Subsequently, the applicant requested that the Migration Board re-examine her case, claiming that there were impediments to the enforcement of the deportation order. She stated that she had recently found out that her uncle, who had previously physically assaulted her, had now joined al-Shabaab, and that he had killed her sister and forced her brother to join al-Shabaab. Thus, if returned to Somalia, she would risk being stoned to death by her uncle.

On 7 September 2013 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It held that the alleged threats stemming from the applicant’s uncles had already been examined by the Board and the Migration Court and that, given her lack of credibility, a mere statement from her about her uncle’s actions was not sufficient to assume that she would risk being stoned upon return. The applicant did not appeal against the Board’s decision.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants, Dorina and Viorel-Aurel Ioniță, were born in 1976 and 1972 respectively and live in Brăila.

On 7 November 2005 the applicants’ son, aged four years and nine months at that time, underwent surgery for the removal of polyps, which was performed by Dr C.B. in the State-run Brăila Emergency Hospital.

Dr C.B. decided to perform the operation under general anaesthetic with tracheal intubation. The general anaesthesia was performed by Dr P.A, assisted by P.V.I., a staff nurse.

After surgery the child was immediately transferred to the intensive care unit. Ten minutes after his transfer P.V.I. informed Dr P.A that the child was cyanotic and had no pulse.

The child suffered a haemorrhage, causing blood to flood his lungs. A team of doctors tried to resuscitate him and clear his respiratory channels, but without any success. The child was declared dead two hours after the operation.

A criminal investigation into the cause of death was opened by the Brăila police on the same day.

Dr C.B. and Dr P.A. were questioned and gave written statements.

An autopsy report issued by the Brăila Forensic Service (Serviciul de medicină legală Brăila) on 8 November 2005 said that the applicants’ son had died of acute respiratory failure as a result of the blood that had blocked his airways and flooded his lungs. It also noted that the child had suffered from several congenital deficiencies which had probably played a role in the postoperative complications: myocardia and hepatic dystrophy, and interatrial septum aneurisms.

The report was sent for the approval of the commission for confirmation and supervision of the Iaşi Forensic Institute (Comisia de avizare și control din cadrul IMF Iaşi). On 5 May 2006 the commission confirmed that the child’s death had occurred after surgery and had been caused by the blood that had blocked his airways and lungs. It held that there had been a causal link between the post-operative treatment and the child’s death. It noted the deflation of the balloon of the catheter (balonaşul sondei de întubaţie), applied after post-operatively to prevent the ingress of blood into the lungs, as a possible cause of the presence of blood there and in his airways.

On 12 October 2006 the superior commission of the Mina Minovici Forensic Institute examined all the documents and approved the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute.

On 8 November 2005 the child’s father lodged a disciplinary complaint against Dr C.B. and Dr P.A.

The disciplinary committee of the Brăila College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from Dr C.B. and Dr P.A., as well as from the doctors involved in the resuscitation procedure postoperation. It gave its decision on 9 July 2007 by which it concluded that the child’s death could be included among cases of sudden death (with a frequency of 2-4 % owing to the child’s pre-existing medical conditions: myocardia and hepatic dystrophy, and inter-atrial septum aneurisms). Although the committee concluded that there had been no direct link between the child’s death and the doctors’ medical conduct, it reprimanded both doctors for their failure to perform the necessary pre-surgical medical tests and to seek the applicants’ informed consent before surgery.

The applicants objected to the committee’s conclusions and their appeal was examined by the superior disciplinary committee of the National College of Doctors.

An expert medical opinion was submitted to the committee and was used by it in reaching its final conclusions. The expert noted, among other things, that the child’s preparation for surgery had not been appropriate as his examination before anaesthesia had been “very superficial”; in this respect the committee noted the lack of a radioscopy of the lungs, of an EKG and an exploration of the necessary time for blood coagulation. In the expert’s view, the doctors had ignored the child’s severe congenital deficiencies as they had considered that surgery for the removal of polyps had been a “minor intervention” and therefore no special precautions had been necessary.

By a decision of 6 June 2008 the superior disciplinary committee of the National College of Doctors quashed the decision of 9 July 2007 and fined each doctor 1,000 Romanian lei (the equivalent of approximately 220 euros (EUR)). It found that the child’s pre-surgical tests had been insufficient for avoiding post-operative complications. Therefore, it held that Dr C.B. and Dr P.A. had infringed Article 53 of the Medical Deontological Code, pursuant to which a doctor should perform diagnoses with maximum diligence in order to determine the adequate treatment and avoid predictable complications that might occur for a patient under his or her care.

The committee further stated that the presence of blood in the child’s airways could not be explained on the basis of the documents and statements in the file. It noted that all the doctors and the nurses who had given evidence stated that the balloon of the intubation catheter had been leakproof (etanche); however, the fact that the cause of death had been the presence of blood in the child’s lungs could only lead to the conclusion that such statements had been inaccurate.

Relying on Articles 58 and 60 of the Deontological Code and Article 6 of Law no. 46/2003, the committee also noted that the parents had not given their informed consent.

On 7 November 2005 the applicants lodged a criminal complaint alleging that the flawed surgical and post-surgical treatment received by their son had resulted in his death. They asked that those responsible be identified and held accountable for their son’s death. They joined the criminal proceedings as civil parties.

Following a request of the Brăila Police Inspectorate, on 19 July 2006 Brăila Emergency Hospital stated that the medical staff members in charge of monitoring the child were Dr P.A. during the intervention and the child’s transfer to the intensive care unit and P.V.I. while in the intensive care unit.

On 5 January 2007 the prosecutor’s office of the Brăila District Court decided to institute criminal proceedings against Dr P.A.

P.V.I. was interviewed as a witness immediately after the child’s death, during the preliminary criminal investigation. During the criminal proceedings against Dr P.A., in spite of the fact that she had been repeatedly summoned, the investigating authorities were not able to question her as she had not been found. She had left her job at the Brăila Emergency Hospital in January 2006.

The prosecuting authorities interviewed several doctors and nurses from the hospital’s medical staff who had been involved in the applicants’ son’s post-operative care.

Dr P.A. lodged a request with the investigating body for a new forensic medical report. He pointed out that there were major contradictions between the autopsy report and the opinion issued by the commission for confirmation and supervision of the Iaşi Forensic Institute.

On 4 April 2007 the Brăila Police Inspectorate asked the Iaşi Forensic Institute to carry out a forensic expert report that would identify the cause and circumstances of the child’s death. The Iaşi Forensic Institute replied that a new forensic report could not be produced as the evidence examined had been sent by Brăila Forensic Service to the Mina Minovici National Forensic Institute.

On 20 February 2008 Dr P.A. submitted an extrajudicial expert report. It stated that the cause of death had not been the presence of blood in the child’s lungs owing to a lack of adequate post-operative monitoring, but the post-operative reaction of a child with pre-existing medical conditions (cardiac congenital malformation, hepatic dystrophy, renal stasis, mesenteric adenopathy and hemorrhagic enterocolitis) mentioned in the medical records kept by the child’s paediatrician. The report noted a generalised inflammatory reaction associated with diffused haemorrhages in his digestive tract, lungs, heart and spleen.

The applicants gave evidence to the investigating authorities on 23 January 2008. They contended that they had not been properly informed about the risks of surgery and of the general anaesthetic and consequently they had not given their consent for such interventions.

On 30 June 2008 the Brăila Police Inspectorate ordered that a new forensic report be produced by the Mina Minovici National Forensic Institute. The applicants, Dr P.A. and the investigating authorities submitted several questions for the forensic experts. They asked, among other things, whether the pre-existent medical condition of the child had influenced his unfavourable post-surgical evolution and whether administration of a general anaesthetic had been the right option, given the age and the diagnosis of the child. The child’s father also asked the Forensic Institute whether the post-operative monitoring of the child had been adequate.

However, on 28 July 2008 the Forensic Institute replied that it could not deliver such a report because under the relevant domestic legislation a new forensic expert report could not be ordered unless there were new medical and factual elements. Accordingly, the Forensic Institute stated that it maintained its previous opinion.

Copies of the documents from the disciplinary file were added to the criminal file.

On 30 September 2008 the prosecutor’s office of the Brăila County Court decided to discontinue the criminal proceedings against Dr P.A., finding, in the light of evidence gathered in the case, that there had been no element of criminal negligence in his conduct. That decision was upheld on 10 November 2008 by the chief prosecutor of the same prosecutor’s office.

A complaint by the applicants against the prosecutors’ decisions was allowed by the Brăila District Court on 25 February 2009. The prosecutors’ decisions were quashed and the District Court kept the file for fresh consideration. It considered that although a new forensic report had not been produced, the decision of the superior committee of the National College of Doctors provided enough information concerning the cause of death, which had been the presence of blood in the child’s airways owing to the balloon of the tracheal catheter not being tight enough. It considered that it should be established whether the post-operative monitoring of the child by Dr P.A. had been appropriate and more precisely whether Dr P.A. should have noticed the non-functioning catheter.

Dr C.B. and Dr P.A. gave statements before the District Court on 18 January 2010. Moreover, members of the medical staff that had attempted resuscitation gave evidence (on 1 March, 20 April and 8 June 2008). Some of them maintained that the blood in the lungs could be explained by the resuscitation attempts and that the balloon of the catheter had been kept tight all the time after surgery.

P.V.I. did not give evidence before the court as, although summoned, she did not attend the hearings. According to several reports issued by bailiffs seeking to bring her before the court, she had left the country for Italy. Based on the material in the case file it does not appear that the court took special measures to identify her address there.

The child’s father gave evidence before the Brăila District Court on 18 January 2010. He reiterated his claims for pecuniary and nonpecuniary damages. He again contended that the doctors had not informed his family about the risks of surgery and in particular of the general anaesthetic and accordingly they had not given their informed consent.

On 1 October 2010, after several hearings, the Brăila District Court acquitted Dr P.A. and dismissed the applicants’ civil claim as unfounded.

The District Court took into account the extrajudicial forensic report submitted by Dr P.A. It noted that the conclusions of the extrajudicial report were in total contradiction to the conclusions of the medical report of 8 November 2005 and the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute.

This judgment was upheld by a decision of the Brăila County Court delivered on 21 December 2010.

The County Court did not take into account the conclusions of the extrajudicial forensic report as in its opinion it represented only extrajudicial evidence which could not set aside the conclusions of competent forensic institutes.

The County Court concluded that the death of the child had been caused by the presence of blood in his airways and lungs. However, based on the evidence in the file, it was not possible to explain when the blood had entered the child’s airways because of the deflation of the catheter’s balloon. Moreover, the post-operative complications occurred ten minutes after the child had been transferred to the intensive care unit, while under the supervision of P.V.I. The County Court held therefore that Dr P.A. could not be held responsible for the deflation of the catheter’s balloon after surgery.

The applicants lodged an appeal on points of law against that decision. They requested that the court extend the criminal investigation to P.V.I., who had had the child under her supervision in the intensive care unit.

By a decision of 15 April 2011 the Galaţi Court of Appeal allowed the applicant’s appeal and quashed the decisions of the lower courts. Noting that the lower courts had not examined the allegation made by the child’s parents that they had not given their consent for surgery and the general anaesthesia, the appeal court sent the file back to the Brăila District Court.

On 22 December 2011 the Brăila District Court acquitted Dr P.A. It held that no causal link existed between the death of the child and the presumed omission of the medical authorities to obtain the applicants’ informed consent for the administration of a general anaesthetic.

It further held that it could not establish beyond any reasonable doubt that Dr P.A. had been negligent in ensuring the tightness of the catheter’s balloon after surgery. Consequently, the court dismissed the applicants’ civil claim as unfounded.

The court also dismissed the applicants’ request to extend the criminal investigation to P.V.I. on the grounds that, under Article 337 § 1 of the CCP, only the prosecutor could ask for the extension of the investigation to other persons while the proceedings were pending before the courts.

This judgment was upheld by a final decision delivered by the Galaţi Court of Appeal on 22 May 2012.

On 28 October 2008 the applicants instituted separate civil proceedings against the Brăila Emergency Hospital and doctors C.B. and P.A. in the Brăila District Court for the pecuniary and nonpecuniary damages they had sustained as a result of their son’s death.

On 23 April 2009, referring to Article 19 of the CCP (see paragraph 57 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the verdict in the criminal proceedings.

On 29 January 2013 the Brăila District Court lifted the stay of the civil proceedings. However, the applicants gave up their separate civil claim on 6 March 2013.


Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicants I.A.A., Z.A.A., B.A.A., A.A.A. and A.M. are Somali nationals who were born in 1994, 1996, 1995, 2001 and 2002 respectively and who currently live in Addis Ababa. They are represented before the Court by Asylum Aid. The President ordered that the applicants’ identity should not to be disclosed to the public (Rule 47 § 4).

The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office.

The five applicants comprise four biological siblings and their first cousin who is a sibling by adoption.

The applicants’ mother was born in Somalia. Between 1990 and 1996 she had seven children with her first husband. The two eldest children went to live with their mother’s paternal aunt and appear to have remained with her in Somalia. Following the breakdown of her relationship with her first husband, the applicant’s mother married her second husband and had a child with him in 1997. She subsequently returned to her first husband and gave birth to two further children in 2001 and 2003. In 2002 she adopted her niece, who is the fifth applicant in the proceedings before the Court.

The applicant’s mother left her first husband for a second time in 2003. Around the same time, her second husband was granted refugee status in the United Kingdom. She joined him there the following year, leaving her nine youngest children, including the applicants, in the care of her sister in Somalia.

In 2005 the applicants’ mother’s only child with her second husband was granted entry clearance to join the couple in the United Kingdom. In sponsoring the application for entry clearance, she did not mention that she had children by her first husband who were still living in Somalia.

In 2006 the applicants’ aunt moved from Somalia to Ethiopia, taking with her the eight children in her care.

In 2007 the applicants’ mother divorced her second husband.

In 2008 two of the applicants’ siblings applied for entry clearance to join their mother in the United Kingdom. Apparently those children were chosen to join her because one was the youngest and the other was in poor health. The application was initially refused but entry clearance was later granted following a successful appeal to the then Asylum and Immigration Tribunal. In allowing the appeal, the Tribunal accepted first, that the mother had effective sole responsibility for the children abroad; secondly, and in the alternative, that there were serious and compelling family or other reasons which made their continued exclusion from the United Kingdom undesirable; thirdly, that the mother and her children had enjoyed family life together as a unit before she had travelled to the United Kingdom to join her second husband; and fourthly, that the mother could not reasonably relocate to Ethiopia to care for her children as she would have no job and no means of survival there.

In or around this time the applicants’ aunt left Ethiopia and returned to Somalia, leaving the eight children in the care of the eldest, who was then sixteen years old. The five applicants and their older sibling, who is not a party to the proceedings before this Court, applied for entry clearance to join their mother in the United Kingdom.

On 9 February 2009 the Secretary of State refused the application for entry clearance on the ground that the applicants and their older sibling did not meet the requirements of paragraphs 297 or 352D of the Immigration Rules HC395 (as amended) because they were not dependent on their mother’s support and they were not the biological children of a recognised refugee. The Secretary of State also considered Article 8 of the Convention but concluded that although there was a limited interference with the applicants’ rights under Article 8, the refusal of entry clearance had been proportionate and justified.

On 23 February 2010 the applicants’ appeal against this decision was dismissed as the Immigration Judge found that they could not meet the requirements of the Immigration Rules. He further found that as contact between the applicants and their mother had been sporadic since 2004, family life did not exist “at the present time” and Article 8 was not, therefore, engaged. However, on 8 June 2010 permission to appeal was granted as the grounds of appeal raised arguable issues in relation to the manner in which the Immigration Judge had approached the Article 8 issue.

The appeal decision was promulgated on 17 September 2010. While the Immigration Judge had little doubt that the previous judge was correct to find that the applicants could not meet the requirements of the Immigration Rules, he found it to be equally clear that he had not adequately addressed the Article 8 issue. In particular, he had concentrated on whether family life existed “at the present time” when the correct test was whether it had existed at the date of the decision, namely 9 February 2009. Consequently, the Immigration Judge concluded that the previous judge had erred in law and set aside his decision. In reconsidering the Article 8 issue, the Immigration Judge accepted that family life had existed between the applicants and their mother at the date of the Secretary of State’s decision and that the refusal of entry clearance had interfered with that family life. Nevertheless, he concluded that the interference had been proportionate because the applicants’ mother had made a conscious decision to leave them in Somalia, knowing that the separation might be permanent, and at the date of the decision she had been living separately from them for more than four years.

The applicants sought leave to appeal on the ground, inter alia, that the Immigration Judge had failed to take into account the findings of the Immigration Judge in the first two children’s appeal against the refusal of entry clearance in 2009.

On 3 December 2010 the Upper Tribunal refused the applicants’ application for leave to appeal as it found that the Immigration Judge had considered all the relevant factors in the round and reached a conclusion which was rationally open to him. On 26 January 2011 permission to appeal was also refused by the Court of Appeal. However, on 23 June 2011 the Court of Appeal made an order by consent ordering that the applicants’ appeal should be remitted to the Immigration and Asylum Chamber of the Upper Tribunal.

The new Tribunal promulgated its decision on 26 January 2012. In assessing whether or not the refusal of entry clearance amounted to a disproportionate interference with the applicants’ rights under Article 8 of the Convention, it accepted the conclusions of the Immigration Judge in the appeal of the applicant’s two siblings against the refusal of entry clearance. The Tribunal also accepted that the best interests of the children had to be treated as a primary consideration, albeit not the primary consideration, in assessing proportionality and that it was in the applicants’ best interests that they should be allowed to join their mother in the United Kingdom. Nevertheless, the general principle remained true that a foreign national who could not satisfy the requirements for entry clearance under the Immigration Rules (and the applicants had not disputed that this was the case) would not normally be able to show that his exclusion from the United Kingdom would constitute a disproportionate interference with his Article 8 rights unless he could show good reason why his case should be treated more favourably that the generality of such cases. Moreover, the Tribunal noted that the applicants’ best interests could not be viewed in isolation and it was therefore relevant that their mother had decided to leave them in Somalia, knowing that the separation was likely to continue for the foreseeable future, and that she had allowed five years to pass before attempting to bring them to the United Kingdom, by which time they had long ceased to live together as a family unit with her.

The Tribunal concluded that:

“The circumstances in which the appellants were living together in Addis Ababa at the date of the respondent’s decision, and in which they are still living now, are undoubtedly harsh, to put it at its lowest. Indeed, they may fairly be characterised as harsh. But sadly they are conditions in which vast numbers of other individuals are compelled to live throughout the unhappier regions of the world. The United Kingdom does not have either the room or the resources to provide for all of them. There is no reason in logic why the appellants should be viewed differently from the vast numbers of other unfortunate individuals who would jump at the opportunity of a new and better life in the United Kingdom, but who cannot fulfil the requirements for entry laid down by the Secretary of State in the Immigration Rules and are therefore unable to avail themselves of that opportunity. On the facts of the appellants’ case as presented before me, I am not persuaded that they have shown why they should be treated differently from the generality of foreign nationals in the same or similar position. In short, whilst I accept that their exclusion from the United Kingdom would constitute an interference with their Article 8 rights and those of the third parties affected by their exclusion, nevertheless that would not constitute a disproportionate interference when balanced against the larger public interest to which I have referred. Their appeals therefore fall to be dismissed.”

In May 2012 the applicants’ older sibling, who had been looking after them, left the family unit in Ethiopia and her current whereabouts are unknown. Since then, the applicants have been cared for by the first applicant.

On 16 October 2012 the Court of Appeal refused permission to appeal as it found that the Immigration Judge had not failed to take into account any relevant factors.

Paragraph 352D of the Immigration Rules contained the requirements for leave to enter as the child of a parent who had been granted refugee status in the United Kingdom. It provided that:

“352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant:

(i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and

(ii) is under the age of 18, and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum; and

(v) would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity."

At the relevant time paragraph 297 of the Immigration Rules contained the requirements for leave to enter as the child of a parent present and settled in the United Kingdom. It provided that:

“297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii) is under the age of 18; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii) does not fall for refusal under the general grounds for refusal.”

By virtue of section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002 an unsuccessful applicant for entry clearance may appeal against the refusal on the ground, inter alia, that “the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to the Human Rights Convention) as being incompatible with the appellant’s Convention rights”.

The Sponsor in the United Kingdom cannot appeal against that decision.


CASE OF MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO AND OTHERS v. BOSNIA AND HERZEGOVINA

No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

András Sajó;André Potocki;Angelika Nußberger;Egidijus Kūris;George Nicolaou;Guido Raimondi;Iulia Motoc;Jon Fridrik Kjølbro;Khanlar Hajiyev;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

On an unknown date in May 2003 the applicants wrote a letter to the highest authorities of the BD, namely the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD, while the procedure for the appointment of a director of the BD’s multi-ethnic public radio station was still pending. In the letter, they voiced their concerns regarding the procedure for the appointment of a director of the BD’s multi-ethnic public radio station. They criticised the authorities for having disregarded the principle of proportional representation of ethnic communities in the public service of BD set out in the Statute of BD. In this connection they stated:

“...We acknowledge and appreciate your support and the effort you put into creating a multi-ethnic radio ... Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb members, one Croat and one Bosniac. Thus, yet again, the (BD) Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded. Parliament established several cases of non-compliance with this principle regarding employment of staff in the public sector, including the BD radio, to the disadvantage of Bosniacs and Croats, and requested that the Governor correct this imbalance. Unfortunately, nothing has been done to correct this. That this is true is confirmed by the unofficial information that Ms M.S. was proposed for the position of the radio’s director by the Serb members of the (selection) panel, who are in the majority, although the former director was Bosniac. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position.”

The letter continued as follows:

“According to our information (našim informacijama), the lady in question

(1) stated in an interview published in ‘NIN’, commenting on the destruction of mosques in Brčko, that Muslims were not a people (Muslimani nisu narod), that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments,

(2) as an employee of the BD radio demonstratively tore to pieces on the radio’s premises (demonstrativno kidala) the calendar showing the schedule of religious services during the month of Ramadan,

(3) on the radio’s premises covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,

(4) as an editor of the cultural programme on the BD radio banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value.

We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of director of the multi-ethnic Radio and Television of Brčko District and that a Bosniac should be appointed to that [radio’s director] position, which would be in compliance with the Statute of [BD] and the need to rectify the ethnic imbalance regarding employment in the public sector.

We hope that you will react appropriately to our letter ...

In the absence of any action on your part, we will be forced to address the public (obratiti se javnosti) and [to contact] international and other competent representatives.”

Soon afterwards, still in May 2003, the letter was published in three different daily newspapers.

On 29 May 2003 M.S. brought civil defamation proceedings claiming that in the above letter the applicants had made defamatory statements which had damaged her reputation and discredited her as a person and a professional journalist.

At the trial the first-instance court admitted a considerable volume of evidence, including oral statements from seven witnesses (apparently all employees of the BD public radio) regarding the veracity of the four allegations contained in the applicants’ letter; it also admitted oral statements from the plaintiff and from O.H. and S.C., the members and statutory representatives of two of the applicants.

As described in the judgment of 29 September 2004 (see paragraph 18 below), M.S. stated that she had learned of the letter shortly after it had been sent by the applicants, but that she did not know who had given it to the media. She confirmed that she had removed from the wall in the premises of the radio station the calendar showing the schedule of religious services during the month of Ramadan, but explained that the wall had been used only for work-related announcements. She denied that she had torn up the calendar. As to the coat of arms of Bosnia and Herzegovina, she stated that an invitation card with the coat of arms of Republika Srpska had been placed in a corner of the coat of arms of Bosnia and Herzegovina, but that the latter had not been covered. Lastly, she denied that she had banned the broadcasting of sevdalinka. She argued that all those matters had been taken out of context, that her career as a journalist had been thwarted and that she had been concerned about her professional future.

O.H. confirmed that he had participated in the preparation of the letter and stated that he had found out about the information contained therein from employees of the radio station who had asked him for help. There had been no intention to publish the letter. For that reason, it had been sent to the authorities personally. He did not know how the letter had reached the media.

S.C. stated that most of the information had been brought to his attention by O.H. The letter had been sent to the authorities personally. Their intention had not been to publish the letter in the media. That was why they had indicated in the letter that it concerned allegations and not established facts. Their aim had been to draw the attention of the authorities to errors of M.S., who had been a serious candidate for the post of director of the BD radio.

By a judgment dated 29 September 2004, the BD Court of First Instance dismissed M.S.’s action and ordered her to publish the judgment at her expense and to reimburse the trial costs of the applicants. It found that the applicants could not be held responsible because there had been no evidence that they had published the letter in the media. The relevant part of the judgment reads as follows:

“It is clear that the defendants’ letter was addressed personally (upućeno na ruke) to the Governor, to the President of the Assembly and to the Supervisor for Brčko District ... and it was not sent to the media ... The court established that the aim of the letter was to bring the attention of the authorities to (these) issues and to enable them to draw certain conclusions on verification of that information, and not to publish unverified information.

Having examined the articles published in the media, the court concludes that none of them was published by [the applicants].”

On appeal by M.S., the BD Court of Appeal quashed that judgment on 16 May 2005 and decided to hold a new hearing.

At the hearing before the Court of Appeal M.S. reiterated that the four statements specified above (see paragraph 11 above) had contained untrue and defamatory allegations whose aim had been to portray her as a nationalist and accordingly disqualify her for the post for which she had applied. Not only had she not been appointed to the post, but the letter had had other long-term negative consequences for her.

The applicants argued that they had lacked capacity to be sued because they had not sent the letter to the media and, accordingly, had not expressed or disseminated in public any defamatory statements in respect of the appellant. The letter had been sent to the authorities. By a judgment of 11 July 2007 the BD Court of Appeal dismissed that argument and stated that

“... a person’s reputation can be damaged if someone expresses or disseminates to other people untrue facts or allegations about the past, knowledge, skills or anything else (and he or she knew or ought to have known that those facts or allegations were untrue). For these reasons, the court dismisses the respondents’ arguments that one can be held responsible for defamation only if there was a public announcement or dissemination or publication of (such) statements in the media.”

The applicants further argued that M.S. had been a public servant and that by having taken part in the competition for the position of radio director she had become a public figure. Relying on section 6(5) of the Defamation Act (see paragraph 41 below), the court held as follows:

“... even if the aggrieved party is a public servant or a candidate for a post in a public body and he or she is generally perceived as having an important influence on public issues of political interest ... (a defendant) is to be held liable for defamation if he knew that a statement was false or negligently disregarded its inaccuracy.”

Referring to the first part of the letter (see paragraph 10 above), the BD Court of Appeal did not go beyond noting that it contained value judgments for which no responsibility could be attributed to the applicants under the Defamation Act. It further quoted the four statements contained in the letter (see paragraph 11 above) and held that these “concerned statements of fact which the defendants were required to prove.” In this connection it re-examined O.H., S.C. and the witnesses who had already given oral evidence before the first-instance court (see paragraph 14 above).

The Court of Appeal also noted that R.S. and O.S., both employees of the BD public radio, had visited one of the applicants in order to discuss M.S.’s behaviour in the workplace. On that occasion R.S. had told O.H. that during the month of Ramadan M.S. had detached from the wall in the radio’s premises the calendar showing the schedule of religious services. The court noted that the wall had been used for work-related announcements. It also indicated that, at the relevant time, another text, which had not been work-related, had been posted on the wall. O.S. (sound manager in the radio) had told O.H. that on one occasion M.S. had asked him to explain why sevdalinka had been broadcasted during the time reserved in the programme for another type of music. He confirmed that she had removed the Ramadan religious calendar from the wall.

At a meeting held shortly afterwards, O.H. shared the information received from R.S. and O.S. with the other respondents. On that occasion one of the respondents had referred to a newspaper article and the alleged statement of M.S. regarding Muslims and the destruction of mosques. An allegation had been also made that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. S.C. had confirmed having heard people speaking about that in the city.

After analysing the statements of the witnesses and the respondents, the court found that the facts reported in the letter regarding the calendar of religious services during the month of Ramadan and the broadcasting of sevdalinka were untrue, since “the letter obviously did not contain what (R.S. and O.S.) had said about the appellant and her behaviour regarding the religious calendar and the broadcasting of sevdalinka”. Noting that the allegation that M.S. was the author of the statement published in the newspaper was untrue, the court stated:

“... on the basis of S.C.’s statement [the court establishes] that at the meeting that preceded the preparation of the letter a distinguished member of a [respondent] had informed those attending the meeting that the appellant had given a statement to the newspaper, whose contents were identical to the contents of the letter. On subsequent verification [S.C.] established that such a text had been published, but that the appellant had not been the author ...”

The court further stated that:

“The respondents also did not prove the truthfulness of the allegation that in her office the appellant had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. On the basis of evidence given by the witnesses examined at the trial (B.S., D.N. and K.P.), [the court] established that the appellant had put an invitation card, which bore the coat of arms of Republika Srpska, in the corner of the coat of arms of Bosnia and Herzegovina ...”

In conclusion, the court stated:

“By the letter sent to the Office of High Representative BD - International Supervisor of the BD, the President of the BD’s Assembly and the Governor of the BD, the respondents damaged the plaintiff’s reputation and honour in the place in which she lives and works. They did so by expressing and disseminating to the above persons facts about the appellant’s behaviour, actions and statements which they knew or ought to have known were false ...”

The Court of Appeal ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD within 15 days that they retracted the letter, failing which they would have to pay jointly the equivalent of EUR 1,280 in non-pecuniary damages to M.S. They were further ordered to give the judgment to the BD radio and television and to two newspapers for publication at the applicants’ own expense. As regards the calculation of the amount of non-pecuniary damages, the court stated:

“When assessing the amount of damages, namely, just satisfaction to be awarded to the appellant, [the court] took into consideration that the impugned facts had been mentioned in the article published in the media ...”

On 15 November 2007 M.S. filed a request with the BD Court of First Instance for enforcement of the above judgment. On 5 December 2007 the Court of First Instance issued a writ of execution.

On 12 December 2007 the applicants paid the equivalent of EUR 1,445 (inclusive of interest and enforcement costs) in enforcement of the judgment of 11 July 2007. On 27 March 2009 the Court of First Instance closed the enforcement proceedings.

On 15 October 2007 the applicants applied to the Constitutional Court of Bosnia and Herzegovina seeking protection of their rights under Article 10 of the Convention.

On 13 May 2010 the Constitutional Court held that the interference with the applicants’ right to freedom of expression had been “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the Convention. The relevant part of the decision reads as follows:

“34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law ...

The impugned judgment was delivered in civil defamation proceedings initiated by the respondent against the appellants ... accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”.

What remains to be determined is whether the interference complained of was ‘necessary in a democratic society’...

With regard to the existence of a ‘pressing social need’, the Constitutional Court observes that the impugned (court) decisions concern the letter which the appellants sent to the authorities of the BD and the Supervisor for BD casting the plaintiff (M.S.) in a negative light. The Court of Appeal considered it to be defamation because (the case) concerned statements whose veracity could be verified ... The Constitutional Court notes that the Court of Appeal qualified the impugned statements in the letter as statements of fact and not as value judgments. The Constitutional Court also considers that they are to be regarded statements of fact which should be proved. The appellants failed to do so, as they did not make reasonable efforts to verify the truthfulness of [those] statements of fact before [reporting], but merely made [those statements].

The Constitutional Court considers that the Court of Appeal established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter (concerning the part of the letter in which it was stated that M.S. ‘made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’), the Court of Appeal established that there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter. Furthermore, the statement in the impugned letter that M.S. had given an interview concerning the destruction of mosques was refuted by another witness, who submitted that subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, in the present case the public interest that permits reporting on alleged irregularities in the conduct of public officials cannot be based on manifestly untrue factual allegations which impugn their reputation [and] which cannot be regarded as criticism that they ought to tolerate in view of their function. Accordingly, the court considers that the Court of Appeal correctly concluded that there was ‘a pressing social need’ in the present case [for the interference with the appellants’ right to freedom of expression].

Furthermore, the Constitutional Court notes that the Court of Appeal awarded non-pecuniary damages to M.S. because her reputation was affected by the untrue statements made in the impugned letter ... The Constitutional Court has already stated in its previous case-law that a person’s reputation forms part of his or her personal identity and psychological integrity ...

The appellants ... failed to verify the impugned statements beforehand as was their duty. The Court of Appeal established that the appellants had damaged M.S.’s reputation by making untrue allegations which caused her mental distress ...When deciding on the claim in respect of non-pecuniary damage and its amount, the Court of Appeal took into account the purpose of those damages and the rule that it should not favour aspirations that were incompatible with its nature and social purpose.

[T]he Constitutional Court considers that the measure imposed on the appellants in the present case was proportionate to the aim pursued ...The court further considers that the Court of Appeal did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage ... [T]he Constitutional Court finds that the reasons the Court of Appeal gave were ‘relevant’ and ‘sufficient’ within the meaning of Article 10 of the European Convention.

In view of the above, the Constitutional Court considers that the interference with the appellants’ right to freedom of expression was ‘necessary in a democratic society’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the European Convention.”

On 21 September 2010 the Constitutional Court’s decision was served on the applicants.

According to the minutes of a meeting of the Management Board of the BD’s radio station dated 9 May 2003, there were two candidates for the post of the radio’s director, one of whom was M.S. The Management Board decided to extend the mandate of the acting director of the radio given that “due to political pressure and repeated voting” no decision could be made in respect of either of the candidates.