Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

A list of the applicants is set out in the appendix.

The Turkish Government (“the Government”) were represented by their Agent.

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

On 5 October 2003 the applicants’ son and brother, Celal Başkaya, who was a student at a public university in Konya at the material time (“Selçuk University”), drowned in the university’s Olympic swimming pool.

Soon after the incident police officers arrived at the swimming pool and examined the accident site together with the deputy manager of the pool, T.S. According to the information provided by T.S., Celal Başkaya was taken to the Konya Numune Hospital following initial medical assistance administered beside the pool. The police drew up a sketch map of the scene of the incident, showing that the victim had drowned in the middle of the pool, where the water depth was 220 centimetres. Another report prepared by the police on the same day indicated that a diabetic ID card had been found amongst the belongings recovered from victim’s changing room locker.

Still on 5 October 2003, the police questioned four suspects in respect of the incident: the lifeguards employed at the pool, B.Y. and C.A., the medical officer at the pool, M.Ö., and the deputy manager of the pool, T.S.

B.Y. told the police that when he and his colleague, C.A., who had been positioned on the other side of the pool at the material time, noticed a person drowning in the middle of the pool, they jumped in and rescued him. When they first took him out, the young man was unconscious, but still had a pulse. They immediately performed the relevant first aid procedures with the assistance of the medical officer M.Ö., and ten minutes later an ambulance arrived and took the man to the hospital. B.Y. stated that it was only after the incident that they learned that the victim was diabetic. B.Y. also claimed that before sinking under water, the victim had not called for help in any way, nor had he made any movements suggesting that he was in danger of drowning.

The other three suspects, C.A., M.Ö. and T.S., gave similar statements to that of B.Y.’s.

On the same day, the police also questioned two eye witnesses, who gave statements along the same lines as the suspects.

The autopsy carried out on the same day confirmed the cause of death as drowning.

On 8 October 2003 the Konya public prosecutor’s office filed a bill of indictment with the Konya Assize Court against the two lifeguards, B.Y. and C.A., the medical officer at the pool, M.Ö., and the deputy manager, T.S., for causing the death of Celal Başkaya by their failure to take the necessary safety measures at the swimming pool.

The applicants joined the proceedings before the Konya Assize Court as civil parties not seeking compensation. In the petition which he submitted to the assize court, the first applicant, Haydar Başkaya (the victim’s brother), claimed that the lifeguards had failed to pay attention to his brother’s initial calls for help and had intervened too late.

Before the Konya Assize Court, the defendants repeated their previous police statements. The lifeguard C.A. informed the assize court that there had been approximately seventy-five to eighty people at the swimming pool at the material time. At the start of the proceedings, the defendants’ lawyer challenged the autopsy report as being incomplete, given that it had not been established during the autopsy whether the victim − who had suffered from diabetes mellitus − had died because he had lapsed into a diabetic coma in the swimming pool. The lawyer requested from the court another autopsy to establish whether he had died of diabetesrelated causes. The matter was brought before the Forensic Medicine Institute, which informed the assize court that blood samples taken after death would not be indicative of the glucose levels preceding death.

At the subsequent hearings the assize court heard statements from witnesses who confirmed that the victim knew how to swim and had drowned without making any noise or movements. The assize court also conducted an on-site examination of the university swimming pool in the presence of the defendants, the applicants’ lawyer, and two experts (one expert lifeguard and one physician from the Provincial Directorate of Youth and Sports).

In his report dated 10 December 2004 the expert lifeguard stated that according to the information in the case file the victim, who apparently knew how to swim, had drowned without any attempts to attract attention. There was, moreover, no evidence to suggest that the lifeguards had neglected their rescue duties in any way. In these circumstances, the expert found that there were no grounds to hold the lifeguards accountable in connection with the death of Celal Başkaya.

In his report dated 31 January 2005 the medical expert found that at the time of the incident there were two lifeguards and one medical officer on duty at the swimming pool, which showed that the necessary safety measures had been in place. The evidence in the case file suggested that the victim knew how to swim, that he had drowned without calling for help or showing any other signs of distress, and that the lifeguards had intervened as soon as they noticed the victim at the bottom of the pool. Without expressing any view as to whether the victim’s death had been related to his diabetes, the expert stated that strenuous physical activity could cause glucose levels to drop, which could in turn lead to loss of consciousness. If the victim had experienced such a hypoglycaemic attack while under water and had, as a result, lost consciousness, it was possible that the lifeguards or other people in the pool might not have realised right away that there was a problem. In the light of all this information, the medical expert stated that the defendants had no responsibility in connection with the victim’s death.

On 4 May 2005 the Konya Assize Court requested another expert report from the Istanbul Forensic Medicine Institute regarding the liability of the defendants in respect of the death of Celal Başkaya.

On 17 May 2005 the Forensic Medicine Institute rejected that request as being outside the scope of its duties. The Konya Assize Court therefore ordered another expert report from three experts on occupational safety.

In their report dated 30 September 2005 the experts on occupational safety made the following findings:

– Considering that the victim knew how to swim, which was not contested, he must have experienced a health problem that caused him to lose consciousness and sink while halfway across the pool.

– Although it was not possible to determine with any certainty what type of health problem had brought about his drowning, the victim was diabetic. The possible outcomes of hypoglycaemia caused by strenuous physical activity had been outlined in the medical expert’s opinion dated 31 January 2005 (see paragraph 16 above).

– It therefore appeared that the victim had silently sunk to the bottom of the pool without calling for help or showing other signs of drowning as a result of his underlying medical condition.

– Bearing in mind that the victim had been only one of the many swimmers in the pool, it could not be expected for the lifeguards to follow all the movements of all the swimmers at all times and to intervene despite the absence of any signs of distress.

– In these circumstances, the lifeguards, who had intervened as soon as they noticed the victim at the bottom of the pool, could not be held accountable for the victim’s death.

Relying on all the evidence and the information in the case file, on 28 February 2006 the Konya Assize Court ordered the defendants’ acquittal.

The applicants appealed against that judgment. They objected in particular to the findings in the expert report issued by the physician on 31 January 2005. They also argued that the expert report of 30 September 2005 had not been made available to them.

On 16 March 2009 the Court of Cassation quashed the judgment of the first instance court and decided to discontinue the proceedings as the prosecution of the offence in question had become time-barred. This decision, which was deposited with the registry of the first-instance court on 28 May 2009, was served on the applicants on 3 June 2010.

The applicants alleged, without submitting any supporting documents, that the lifeguards had been discharged from their duties in the aftermath of the incident. This information was neither confirmed nor contested by the Government.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in 1951 and lives in Los Angeles.

The applicant was born in Armenia and grew up in a house in Yerevan which had been built by his grandfather in the 1940s. After the grandfather’s death the applicant’s uncle lived with his family on the first floor of the house, while the applicant’s family lived on the second floor. The entrance to the house is common to the occupants of the first and second floors, and there is a common plot of land adjacent to it.

In the 1970s the applicant’s uncle sold the first floor of the house to M.G.

The applicant later moved to the United States with his father, who died there in 1993, leaving all his property to the applicant.

In 1997 the applicant submitted his father’s will to a notary in Armenia. The notary then issued a certificate of inheritance and the State Real Estate Registry registered his title in respect of the second floor of the house.

In 2003 M.G. sold the first floor of the house to E.T., who registered her title in respect of the first floor. She also obtained the right of common ownership in respect of the adjacent land.

It appears that E.T. and her family carried out construction works in the house and on the plot of land adjacent to it, modifying both the house and the surrounding area. They have built and are running a restaurant there.

On an unspecified date the applicant lodged a civil claim against E.T., M.G. and the State Real Estate Registry, seeking to annul E.T.’s title in respect of the first floor and the adjacent land, and to oblige her to demolish the buildings constructed without the permission of the authorities and to restore the stone wall that she had destroyed. E.T. in her turn lodged a counterclaim against the applicant, seeking to annul the will and the subsequent registration of his title as regards the plot of land adjacent to the house.

By a judgment of 1 July 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան – “the District Court”) partially allowed the applicant’s claim and dismissed E.T.’s counterclaim.

On 22 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) re-examined the case on the merits. It granted the applicant’s claims in their entirety and rejected E.T.’s counterclaim.

E.T. subsequently lodged an appeal on points of law against the judgment of the Civil Court of Appeal.

On 24 October 2003 the Civil and Economic Chamber of the Court of Cassation (ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատ) dismissed E.T.’s appeal on points of law and upheld the judgment of the Court of Appeal. The judgment of 22 August 2003 thereby became final and binding and a writ of execution was issued in this respect.

On 4 December 2003 enforcement proceedings were instituted by the Department for the Enforcement of Judicial Acts (Դատական ակտերի հարկադիր կատարման ծառայություն – “the DEJA”).

Thereafter the head of the Kentron division of the State Real Estate Registry (Անշարժ գույքի կադաստրի պետական կոմիտեի Կենտրոն տարածքային ստորաբաժանում) requested the Civil Court of Appeal to clarify the judgment of 22 August 2003.

On 22 October 2004 the Civil Court of Appeal issued a clarification of the above-mentioned judgment. It stated, in particular, that the title to the plot of land adjacent to the house was to be registered in the applicant’s name. This decision became final and was also submitted for enforcement.

On 11 April 2006 the applicant lodged a civil claim against the Kentron division of the State Real Estate Registry, the DEJA and E.T., seeking to oblige the Kentron division of the Real Estate Registry to comply with the requirements of the judgment of the Court of Appeal of 22 August 2003 and the decision of 22 October 2004 concerning its clarification, to evict E.T. and other persons who were unlawfully occupying his property, and to terminate the activities of the restaurant situated therein.

By the judgment of 28 August 2006 the District Court allowed the applicant’s claim in its entirety. It stated, in particular, that the applicant’s title was to be registered in respect of the plot of land adjacent to the house and the constructions situated therein, that E.T. and the other persons occupying the applicant’s property were to be evicted, and that these persons should terminate the activities of the restaurant.

After an appeal lodged by E.T. on 22 December 2006 the Civil Court of Appeal re-examined the case and allowed the applicant’s claim. In doing so, it stated that the judgment of 22 August 2003 and the decision of 22 October 2004 had not yet been enforced since the applicant’s title had not been registered and the constructions had not been demolished. The Court of Appeal went on to state that the non-enforcement of the above-mentioned judicial acts was in violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the applicant’s right to peaceful enjoyment of his possessions was being violated by the illegal occupation of his property by E.T. without the applicant’s permission. This judgment became final and binding on the day of its delivery and on 26 January 2007 enforcement proceedings were instituted in its respect.

Since 2003 a number of decisions have been made by the bailiffs in respect of obliging E.T. to comply with the requirements of the judgment in the applicant’s favour within certain time-limits. However, each time E.T. has failed to comply with these decisions, for which failure the bailiffs have each time imposed a fine. It appears that she has also failed to pay the fines.

In 2005 enforcement activities were postponed on the grounds that various measures applied in respect of E.T. had been ineffective in view of the fact that the DEJA needed to suspend the proceedings in order to conclude a contract with a construction company, given the absence of technical equipment necessary for conducting the compulsory construction works. It appears that at some point the proceedings were resumed.

By a letter of 25 December 2008 the Minister of Justice informed the applicant’s lawyer that the Kentron division of the State Real Estate Registry had justified the non-registration of the applicant’s title in respect of his property by pointing to the fact that the constructions situated therein had not been demolished because the DEJA did not have the appropriate technical equipment and workforce at its disposal.

It appears that until 2010 other measures were initiated by the DEJA, such as obliging the Kentron division of the State Real Estate Registry to perform the registration of the applicant’s title, in accordance with the judgments in his favour, and setting new time-limits for E.T. to comply with her obligations. However, it appears that these measures did not lead to the full enforcement of the judicial acts in question.

On an unspecified date the applicant applied to the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն), seeking to have criminal proceedings instituted against those responsible for not enforcing the judicial acts in question. His request was refused.

Following a complaint lodged by the applicant, on 3 July 2007 the District Court annulled the decision of the General Prosecutor’s Office to refuse to institute criminal proceedings, on the grounds that the investigator had not taken proper action to verify whether the bailiffs had carried out their duties properly with a view to securing the enforcement of the above-mentioned judicial acts in favour of the applicant. As a result, criminal proceedings were instituted against the bailiffs and officials of the Kentron division of the State Real Estate Registry.

On 26 December 2007 the investigator terminated the proceedings on the grounds that the judicial acts in question had not – for objectively justifiable reasons – been enforced.

On 25 February 2008 the District Court annulled the investigator’s decision of 26 December 2007, stating, inter alia, that the investigator had failed to determine why for more than four years E.T. and other persons had not been evicted, the constructions on the applicant’s property had not been demolished, and the activities of the restaurant had not been terminated – even after E.T. had been fined for not complying with the requirements of the judicial acts in question.

The prosecutor appealed against the above-mentioned decision of the District Court.

On 28 April 2008 the Criminal Court of Appeal (ՀՀ վերաքննիչ քրեական դատարան) upheld the decision of 25 February 2008. As a result, the criminal proceedings were resumed on 14 May 2008.

Thereafter, the criminal proceedings were again terminated three times, namely on 14 June 2008, 17 July 2009 and 23 April 2010. The first two termination decisions were successfully challenged by the applicant at two levels of jurisdiction, following which the criminal proceedings were re-opened on the orders of those courts. As for the final decision by which the proceedings were once again terminated, the applicant lodged a complaint with the General Prosecutor’s Office, but his complaint was rejected for failure to comply with the time-limits for lodging an application for supervisory review. According to the applicant, he did not pursue this last complaint any further.

According to the latest information received from the applicant, the enforcement proceedings were closed on 5 September 2016 because the enforcement of the judgments was impossible. The judgments of the Civil Court of Appeal of 22 August 2003 and 22 December 2006, as well as the decision of 22 October 2004, therefore remain unenforced today.


CASE OF PETROVIĆ AND OTHERS v. MONTENEGRO

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants were born in 1956, 1952, 1975, and 1980 respectively. The first applicant lives in Tivat and the second, third and fourth applicants live in Kotor.

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

On 1 September 2009 the first and second applicants and the father of the third and fourth applicants instituted civil proceedings against the State, seeking that they be recognised as owners of two plots of land in the coastal zone (u zoni morskog dobra). They submitted, in particular, that the land at issue had been lawfully owned by their father, but that without any legal basis the State appeared as the registered owner thereof in the Real Estate Registry, and that they should be declared owners as their father’s legal successors (kao pravni sledbenici).

On 2 March 2010 the Real Estate Administration in Tivat (Uprava za nekretnine, područna jedinica Tivat), acting upon the first applicant’s request, issued a decision allowing the division into two of an adjacent plot of land, a forest in the coastal zone, the registered owner of which at the time was the Municipality. The Municipality remained registered as the owner of one part of it, whereas the other part was registered in the name of the applicants’ predecessor (the father of the first and second applicants, and the grandfather of the third and fourth applicants).

On 21 November 2011, after a remittal, the Court of First Instance (Osnovni sud) in Kotor ruled against the first and second applicants and the third and fourth applicants’ father. The court found that the land at issue had indeed been owned by their predecessors, notably their father, grandfather and grand-grandfather, but that they had not proved that they had inherited it when their last predecessor had died in 1997. Notably, the court considered that the land at issue was in the coastal zone and thus State property pursuant to section 4 of the Coastal Zone Act of 1992 and “section 13 and other sections” of the State Property Act (see paragraphs 21 and 24 below), and that the claimants could not claim the right to property in respect of such land. The court made no reference to section 30 of the Coastal Zone Act (see paragraph 22 below). As regards the State’s submission that the land had been nationalised, the court noted that the contents of the decisions relied on by the State could not be clarified. Notably, the State Archive (Državni arhiv) informed the court, on 4 October 2010 and 26 August 2011, that the case files and decisions Dn 428/90 and Dn 615/92, referred to by the State, had not been found in that institution. Finally, the court considered that the Real Estate Administration decision of 2 March 2010 (see paragraph 8 above) was “of no particular influence” (bez posebnog uticaja) given that it related to a different plot of land which was not the subject of these proceedings.

In their appeal the first and second applicants and the third and fourth applicants’ father confirmed that the said land had not been in their predecessor’s estate when he died, which was exactly the reason why they had initiated these proceedings. They also submitted that: (a) section 30 of the Coastal Zone Act had never been complied with even though it was indisputable that their predecessor had lawfully owned the land; and (b) the relevant legislation did not prohibit private ownership of land in the coastal zone, and referred to section 4 of the Coastal Zone Act and section 20 of the Property Act 2009 (see paragraphs 21 and 19 below). They reiterated that the adjacent plot of land, also a forest in the coastal zone, was privately owned, by them, and submitted the decision of the Real Estate Administration of 2 March 2010. They maintained that the first-instance court’s reasoning that the said decision was of no influence indicated legal uncertainty, given that the same legal issue was treated differently without any explanation in that regard.

On 6 April 2012 the High Court (Viši sud) upheld the first-instance judgment. It found that the land at issue was indisputably forest in the coastal zone, that it was State property pursuant to section 13 of the State Property Act and that the claimants therefore could not claim ownership. The court further held that even assuming that the claimants had had ownership of these plots of land, they had lost it “in accordance with the State Property Act and the Coastal Zone Act. In support of this was also section 30 of the Coastal Zone Act, relied upon by the claimants, which provided that the owners of land in the coastal zone, who had obtained it in a lawful manner before that Act entered into force and which was duly registered in the Real Estate Register as private property, were entitled to compensation in case of an expropriation”. The High Court made no reference to the decision of 2 March 2010 and the status of the adjacent plot of land, or as to whether the claimants could have inherited the land.

On 11 October 2012 the Supreme Court (Vrhovni sud) upheld the previous judgments. The court made no explicit reference to the adjacent plot of land and the decision of 2 March 2010. It held as follows:

“As the real estate at issue is in the coastal zone regime – common resource (dobro od opšteg interesa), the lower courts correctly applied the substantive law when they ruled in the said way. Notably, pursuant to section 4 of the Coastal Zone Act, which had been in force until State Property Act entered into force (Official Gazette of Montenegro no. 21.09), coast is owned by the State and could not be object of the private property.

The claimants were wrong to consider that the issue was to be resolved by means of section 30 of the Coastal Zone Act. That provision regulated the rights of the owners of land in the coastal zone who had obtained the property thereof before that Act entered into force by providing that they were entitled to compensation in case of an expropriation [...]. That means that the land did not remain in the private property regime, but became State property by the law itself.

Likewise, section 20(2) of the Property Act 2009 is inapplicable to the present case as it cannot be retroactively applied to relations which had arisen before it came into force. Exceptionally, the right to property over a coastal zone can be acquired only after it entered into force.”

On 25 December 2012 the first and second applicants and the third and fourth applicants’ father lodged a constitutional appeal. They submitted, inter alia, that it was not true that land in the coastal zone could not be privately owned, as numerous plots of land in that zone were private property, including the plot of land adjacent to the one at issue, which was owned by them. They invoked the right to a fair trial and the right to property, and reiterated the importance of legal certainty.

On 23 July 2014 the Constitutional Court dismissed the constitutional appeal. It held that the lower courts’ assessment “was based on a correct application of substantive law and a constitutionally acceptable interpretation thereof, in accordance with Article 6 of the Convention”. As regards Article 1 of Protocol No. 1 the court held that a claim which had been dismissed because the claimants did not meet statutory conditions was not considered a possession that could constitute property rights, and thus there could be no violation of such a right either. This decision was served on 13 October 2014 at the earliest.

On 16 December 2014 the third and fourth applicants’ father died, leaving the third and fourth applicants as his heirs.

On 27 May 2015 the Supreme Court issued a general legal opinion (načelni pravni stav) relating to the use of land in the coastal zone. In reaching this opinion, the Supreme Court analysed the relevant domestic legislation, including the Constitution, the Coastal Zone Act 1992, the Property Act and the State Property Act. It found, inter alia, that section 20(2) of the Property Act provided that exceptionally coastal zone can be privately owned, while at the same time section 22(3) of the same Act provided that the coast cannot be privately owned. It also found that the conditions under which the coastal zone can be privately owned are not provided for by law (nisu zakonom određeni), “which leaves open numerous questions on practical implementation”. The court concluded that “by analysing [the relevant legislation] it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined by legislation. It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in a precise and clear manner...”, but that it was a fact that there were lawfully acquired property rights over the coastal zone, as indicated by section 30 of the Coastal Zone Act.


Remainder inadmissible;Violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

Mr Tadeucci (“the first applicant”) was born in 1965. Mr McCall (“the second applicant”) was born in 1958. They live in Amsterdam.

The applicants have formed a same-sex couple since 1999. They lived in New Zealand, with the status of unmarried couple, until December 2003, when they decided to settle in Italy on grounds of the first applicant’s poor health.

During their first period of residence in Italy the second applicant had a student’s temporary residence permit. He subsequently applied for a residence permit for family reasons, under Legislative Decree no. 286 of 1998 ... .

On 18 October 2004 the chief of the Livorno police rejected his application on the ground that the statutory criteria were not satisfied.

On 27 January 2005 the applicants appealed on the basis of Legislative Decree no. 286 of 1998, requesting that the second applicant be issued with a residence permit for family reasons.

In a judgment of 4 July 2005 the Florence Civil Court allowed the applicants’ appeal.

The court observed that the applicants were recognised as a couple in New Zealand, the first applicant having been issued with a residence permit in that country for family reasons in his capacity as an unmarried partner. The court found that the applicants’ status as an unmarried couple was not contrary to Italian public policy, as de facto couples received social and legal recognition in the Italian system. In the court’s view, Article 30 of Legislative Decree no. 286 of 1998 ... had to be interpreted in conformity with the principles established by the Constitution, which meant that a same-sex cohabiting partner should be regarded as a “member of the family” of the Italian national and thus entitled to obtain a residence permit.

The court found that the right asserted by the second applicant also derived from Articles 3 and 10 of Directive 2004/38/EC of 29 May 2004 of the European Parliament and of the Council ..., which recognised the right of the partner of a citizen of the European Union (EU) to obtain a residence permit where the existence of a durable relationship was duly attested.

The Minister of Foreign Affairs appealed against the judgment of the Florence Civil Court.

In a judgment of 12 May 2006 the Florence Court of Appeal allowed the appeal. It observed that the New Zealand authorities had recognised that the applicants had the status of “unmarried cohabiting partners” and not that of “members of the same family”.

The Court of Appeal found, first, that the lower court’s recommended interpretation of Legislative Decree no. 286 of 1998, according to which the “cohabiting partner” was regarded as a “member of the family”, was not compatible with the Italian legal system, which, according to the court, ascribed a different scope and meaning to those two legal concepts. Secondly, the Court of Appeal pointed out that the Constitutional Court had repeatedly held that a relationship based on cohabitation alone, and lacking stability and legal certainty, could not in any circumstances be regarded as a legitimate family based on marriage.

The Court of Appeal found that New Zealand law was not compatible with Italian public policy on the grounds, firstly, that it regarded persons of the same sex as “cohabiting partners” and, furthermore, that it could be construed as conferring the status of “family members” on them for the purposes of granting them a residence permit. Lastly, it added that neither European law, particularly Directive No 2004/38/EC ..., nor the provisions of the European Convention on Human Rights, obliged the States to recognise same-sex relationships.

The applicants appealed on points of law.

In a judgment of 30 September 2008, the text of which was deposited with the registry on 17 March 2009, the Court of Cassation dismissed the applicants’ appeal.

The Court of Cassation observed first that, according to the terms of Article 29 of Legislative Decree no. 286 of 1998 ..., the concept of “family member” extended only to spouses, minor children, adult children who were not self-supporting for health reasons, and dependent relatives who lacked adequate support in their country of origin. It pointed out that as the Constitutional Court had, moreover, ruled out the possibility of extending to cohabiting partners the protection granted to members of a legitimate family, the Constitution did not require an extensive interpretation of Article 29 cited above.

The Court of Cassation also considered that Articles 8 and 12 of the Convention did not require such an interpretation either. In its view, those provisions left a wide margin of appreciation to the States regarding the choice of means of exercising the rights they guaranteed, particularly in the area of immigration control. The Court of Cassation added that there had been no discrimination on grounds of the applicants’ sexual orientation in the present case. It observed in that connection that the non-eligibility of unmarried partners for a residence permit for family reasons applied to opposite-sex couples as well as same-sex partners.

Lastly, it held that European Directive 2004/38/EC ..., which concerned the right of EU citizens to move freely within the territory of the Member States other than their State of origin, did not apply to the present case, which concerned family reunification with an Italian national resident in his own country.

After being notified of the Court of Cassation’s judgment, the applicants left Italy in July 2009. They moved to the Netherlands, where the second applicant was issued with a five-year residence permit on 25 August 2009 as a de facto partner in a long-term relationship with an EU national.

On 8 May 2010 the applicants married in Amsterdam. They stated that they had chosen to marry for personal reasons and not in order to obtain a residence permit, as the Netherlands authorities had already issued one to the second applicant. They added that the marriage contracted in the Netherlands did not allow them to live together in Italy. On 22 August 2014 the second applicant obtained a second five-year residence permit in the Netherlands, valid until 22 August 2019.


András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant in the first case, Mr Dariusz Barski (“the first applicant”), is a Polish national, who was born in 1968 and lives in Aleksandrów Łódzki.

The applicant in the second case, Mr Bogdan Święczkowski (“the second applicant”), is a Polish national, who was born in 1970 and lives in Sosnowiec. Both applicants were represented before the Court by Mr M. Górski, a lawyer practising in Łódź.

The applicants were high-ranking prosecutors. The first applicant had served, inter alia, as the Deputy Prosecutor General and the Deputy Minister of Justice. Both applicants acquired the status of a “prosecutor in inactive service” (prokurator w stanie spoczynku) in May 2010.

The applicants stood for election to the Sejm (the first Chamber of the Parliament) from the list of the Law and Justice party as nonpartisan candidates.

On 22 September 2011, during the electoral campaign before parliamentary elections, the National Council of the Prosecution Service (Krajowa Rada Prokuratury), a body composed of senior prosecutors, Members of Parliament, the Minister of Justice, the Prosecutor General and the representative of the President of the Republic, passed a resolution expressing a view on the participation of prosecutors standing for election in political activities. The National Council opined that prosecutors, including prosecutors in inactive service had the right to stand for election to Parliament. It noted that the prosecutors in inactive service enjoyed a privileged position in comparison to the prosecutors in service in that when elected members of parliament the former were not required to renounce their status of prosecutors in inactive service. The National Council recommended that this situation had to be addressed by the legislature. At the same time, it reminded all prosecutors of the statutory ban on engaging in political activity.

The applicants were elected members of the Sejm on 9 October 2011. The results of the elections were published on 12 October 2011. On an unspecified date the applicants were requested by the Speaker of the Sejm (Marszałek Sejmu) to renounce their status of prosecutors in inactive service.

On 18 October 2011 the National Council of the Prosecution Service passed a new resolution in which it opined that both prosecutors in service and prosecutors in inactive service could not hold their position and sit as Member of Parliament at the same time. The Council stated that its previous opinion of 18 September 2011 had only concerned the period of electoral campaign.

On 27 October 2011 the Speaker of the Sejm issued two respective orders declaring that the applicants had forfeited their parliamentary seats under Article 103 § 2 of the Constitution in conjunction with Article 249 § 1 of the Electoral Code. He observed that the prohibition of holding jointly a parliamentary seat and other public office (“incompatibilitas”) was the consequence of the principle of the separation of powers and of the political neutrality of the public service. The Constitution prescribed in Article 103 §§ 1 and 2 the absolute and directly applicable ban on joint holding of the office of a deputy with other positions listed in this provision. The scope of this ban could not be restricted by statutory regulations.

The Speaker noted that the ban on holding jointly a parliamentary seat and the office of a prosecutor was prescribed in Article 103 § 2 of the Constitution. This rule was also reflected in the statutory norms, namely section 30 § 1 of the Act on the Exercise of the Mandate of the Member of the Sejm and of the Senate (hereinafter “The Act on the Exercise”) and section 65a § 1 of the Act on the Prosecution Service. The scope of those various provisions was not identical, in particular with regard to the consequences of the breach of the impugned ban. The Act on the Exercise stated that deputies could not concurrently work in the position of a prosecutor and permitted in such a case for a prosecutor to benefit from an unpaid leave of absence. On the other hand, the Act on the Prosecution Service required that a prosecutor who had been elected to hold a position in a State organ forfeit his office of the prosecutor, unless he acquired the status of a prosecutor in inactive service. The Speaker acknowledged the above divergences in respect of the impugned ban between the statutory regulation on the one hand and the constitutional regulation on the other. Nonetheless, the Speaker considered that he was obliged to apply the constitutional rule prescribed in Article 103 § 2 and disregard the statutory provisions incompatible with that rule.

The next issue to determine was the interpretation of the term “prosecutor” employed in Article 103 § 2 of the Constitution and whether this term encompassed prosecutors in inactive service. The Speaker noted that this was an autonomous constitutional term which could not be limited to its statutory definitions. Having analysed the relevant provisions of the Act on the Prosecution Service as well as the case-law of the Constitutional Court and of the Supreme Court, the Speaker found that the term “prosecutor” employed in Article 103 § 2 of the Constitution encompassed equally prosecutors in inactive service.

The Speaker noted that within fourteen days of the final result of the elections the applicants could have declared that they had renounced their status of prosecutors in inactive service. In the absence of such a declaration, the Speaker held that the applicants had forfeited their parliamentary seats.

The first applicant lodged an appeal with the Supreme Court. He argued, inter alia, that the Speaker had erred in finding that the term “prosecutor” used in Article 103 § 2 of the Constitution comprised prosecutors in inactive service. He further maintained that the Speaker had suddenly adopted a new interpretation of the term which was inconsistent with its statutory understanding (section 65a § 1 of the Act on the Prosecution Service and section 30 of the Act on the Exercise) as well as contrary to existing practice. He further invoked the first resolution of the National Council of the Prosecution Service which stated that a prosecutor in inactive service could hold the office of a deputy jointly with his status of a prosecutor in inactive service. In addition, the Speaker’s finding that the first applicant had to irrevocably forfeit his status of the prosecutor in inactive service in order to keep his parliamentary seat breached the constitutional provisions on proportionality and equality. Lastly, invoking, inter alia, Article 6 § 1 of the Convention, the applicant submitted that the Speaker had not informed him about the procedure initiated in his case and had not offered him a possibility to make representations.

The second applicant appealed too. He alleged, inter alia, that the Speaker had wrongly applied Article 103 § 2 and other provisions of the Constitution regulating the right of access to the public service and the right to stand for election as well as the relevant provisions of the Electoral Code. He also invoked Article 14 of the Convention. His main contention was that the ban prescribed in Article 103 § 2 of the Constitution did not apply to prosecutors in inactive service.

On 9 November 2011, the Supreme Court, sitting in camera, dismissed the applicants’ respective appeals.

The Supreme Court first inquired about the existing practice with regard to judges and prosecutors in inactive service sitting as MPs. It established that there had been one case of a judge in inactive service who sat as a Senator (Member of the Senate, the second Chamber of the Polish Parliament) between 2001 and 2007. In that case no action was taken by the Speaker of the Senate. There had been no such cases concerning prosecutors in inactive service. In one case concerning a judge in inactive service, the First President of the Supreme Court objected to the participation of this judge in the capacity of an expert in the works of the parliamentary commission of inquiry, considering it being incompatible with the duty of political neutrality of judges. In the Supreme Court’s view, the existing practice was inconsistent and did not support the applicants’ contention that prosecutors in inactive service could sit as MPs.

The Supreme Court carried out a detailed analysis of the term “prosecutor” within the meaning of Article 103 § 2 of the Constitution. It noted first that this provision used the term “prosecutor” without any qualification which signified that it was applicable to all prosecutors, i.e. persons appointed to a post of a prosecutor. At the date of the entry into force of the Constitution, that is on 17 October 1997, the appointment to a post of a prosecutor ended with retirement. Subsequently, on 1 January 1998 the Amendment to the Prosecution Service Act introduced the status of a “prosecutor in inactive service” (in parallel to the status of a “judge in inactive service”). Following this amendment, the public-law employment relationship of a prosecutor began with his appointment and continued until his or her death (save for cases when a prosecutor renounced it or was divested of it as a result of a judgment). The said amendment altered the meaning of the term “prosecutor” and from its entry into force the term covered not only prosecutors in active service, but also “prosecutors in inactive service”.

This finding was confirmed by the case-law of the Constitutional Court (judgment of 6 March 2007, case no. SK 54/06) and of the Supreme Court (inter alia, judgment of 29 September 2005, case no. SDI 22/05). Both courts underlined that a prosecutor in inactive service (or judge in inactive service) did not cease to be a prosecutor (judge) and the holder of a public office. Prosecutors in inactive service continued their publiclaw employment relationship with the exception of the obligation to carry out their duties. The legislator wished to preserve the authority of the office of a prosecutor (judge) and thus bestowed particular privileges on those who had held those offices in exchange for the resignation from certain rights. The Act on the Prosecution Service linked the status of a prosecutor in inactive service with a number of obligations such as disciplinary responsibility, the limitation on taking any other employment or gainful activity, the requirement to uphold the dignity of the office and the ban on engaging in political activity. At the same time prosecutors in inactive service received a special pension (uposażenie) which was more favourable than an ordinary old-age pension. It was further clear that a prosecutor in inactive service could voluntarily renounce his status and all the corresponding rights and obligations.

In conclusion, the Supreme Court held that there was no doubt that the term “prosecutor” employed in Article 103 § 2 of the Constitution covered both prosecutors in service and prosecutors in inactive service. It noted that the interpretation of the provisions of the Constitution, like in the present case, could not be determined by the content of statutory norms, in particular by section 65a of the Act on the Prosecution Service. The ban on holding jointly a parliamentary seat and the position of a prosecutor, comprising prosecutor in inactive service, was directly prescribed in the Constitution. Accordingly, the fact of a prosecutor going into inactive service could not revoke the ban set out in Article 103 § 2 of the Constitution; it was necessary that a prosecutor in inactive service renounce his status the prosecutor in inactive service.

Furthermore, the Supreme Court noted that according to section 44 § 3 of the Act on the Prosecution Service, prosecutors were prohibited from joining any political party and from engaging in any political activity. In accordance with the Supreme Court’s case-law, this provision was also applicable to prosecutors in inactive service, while there was no doubt that sitting as a deputy was a political activity. In the Supreme Court’s view, the rules on disqualification were aimed at ensuring political neutrality of the public service and the transparent operation of the parliament free from undue influence and the conflict of interest. They were further proportional to those aims. The Supreme Court held that the constitutional provisions on the equality (Article 32 § 2), the right of access to the public service (Article 60) and the right to be elected (Article 99) had not been infringed. The ban which affected the applicant had its origin in the Constitution itself and the drafters of the Constitution had carried out a balancing exercise of the various competing interests. Furthermore, the applicants had had time to consider their options and the possibility to renounce their status of prosecutors in inactive service.

The Supreme Court found that no provision of the Convention, in particular Article 3 of Protocol No. 1 or Article 14, had been breached in the applicants’ case. In its view, Article 3 of Protocol No. 1 did not concern the rules on disqualification. The applicants had exercised their right to be elected a deputy, but in order to keep their parliamentary seat they had to renounce their status of a prosecutor in inactive service. The Supreme Court relied on the decision Briķe v. Latvia (no. 47135/99, 29 June 2000) in which the Court had dismissed the complaint of a judge who complained that in order to stand for election to Parliament she had had to resign from her judicial office. The Supreme Court found that the same approach was applicable, mutatis mutandis, to the situation of the applicants in the present case.

The Supreme Court further held that Article 6 § 1 of the Convention was not applicable to the proceedings at issue because they concerned political rights. It noted, in passing, that the applicants had been summoned to renounce their status of the prosecutor in inactive service.

The first applicant filed a constitutional complaint. He alleged that the relevant provisions of the Electoral Code breached the constitutional right of access to the public service (Article 60), the right to stand for election (Article 99 § 1) as well as Article 103 § 2 of the Constitution in that prosecutors in inactive service could not sit as Deputies. On 25 September 2013 the Constitutional Court discontinued the proceedings, having found, inter alia, that the ban on holding jointly the offices of a prosecutor in inactive service and of an MP was prescribed directly in the Constitution and therefore the Constitutional Court had no jurisdiction to decide the case (case no. SK 44/12). It noted, obiter dicta, that the inconsistent interpretation of Article 103 § 2 of the Constitution should be unified.

Article 99 § 1 of the Constitution provides:

“Every citizen having the right to vote, who, no later than on the day of the elections, has attained the age of 21 years, shall be eligible to be elected to the Sejm.”

Article 103 § 2 of the Constitution reads as follows:

“No judge, public prosecutor, officer of the civil service, soldier on active military service or officer of the police or of the services of State protection shall exercise the mandate of a Deputy.”

Article 247 of the Electoral Code, in its relevant part, provides as follows:

“1. The expiration of the mandate of a Deputy shall occur in the following cases:

5) holding on the election day of an office or position, which according to the provisions of the Constitution of the Republic of Poland or statutes could not be held jointly with the office of a Deputy, subject to the provision of § 3.”

Article 247 § 3 states that an expiration of the mandate of a Deputy in the situation described above will take place if a Deputy did not submit to the Speaker of the Sejm a declaration resigning from his other office or position within fourteen days of the official result of the election being published.

Article 334 § 2 of the Electoral Code provides that a Member of the European Parliament cannot hold jointly his or her mandate with those offices or positions which according to the Constitution or statutes cannot be held jointly with the mandate of a Deputy.

Section 44 § 3 of the Act on the Prosecution Service provides that a prosecutor cannot join a political party or be involved in any political activity.

Section 65a § 1 of the same Act reads as follows:

“A prosecutor who was nominated, appointed or elected to hold office in the State organs, local self-government, diplomatic service, consular service or in the organs of the international or supranational organisations acting on the basis of an international agreement ratified by the Republic of Poland shall resign from his position unless he goes into inactive service.”


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1971 and lives in Maribor.

On the night of 13 April 1990 the applicant, then eighteen years old, was raped by a group of seven males. Three other males allegedly participated: one as an aider and abettor and two others by committing a sexual assault on her. Five of the accused had not yet reached the age of majority (eighteen years) at the time of the commission of the criminal acts and were accordingly tried as juveniles.

In September 1990 criminal charges of rape, aiding and abetting rape and sexual assault were brought against the accused. All of them submitted in their defence that the applicant had voluntarily engaged in sexual activity with them.

The court held a number of hearings and obtained expert reports. An expert in clinical psychology found that the applicant had a learning disability and that she had not been physically or mentally capable of offering serious resistance.

On 13 November 1990 the Maribor Basic Court rendered a judgment acquitting the defendants of all charges. The verdict was based on the findings that the applicant had not seriously resisted sexual intercourse, that she had changed her testimony regarding the events surrounding one of the rape charges during the proceedings and that the defendants could not be considered to have employed force or threats which would be objectively capable of breaking the victim’s resistance.

The Public Prosecutor appealed against the judgment.

On 10 April 1991 the Maribor Higher Court quashed the first-instance judgment, finding that the facts had been insufficiently established. It ordered that the case be remitted to the first-instance court for fresh consideration before a different panel, without the participation of the judges who had delivered the impugned judgment.

In July 1991 the Maribor Basic Court conducted inquiries in order to establish the place of residence of two of the defendants. However, as the two defendants had allegedly emigrated to Austria, they could not be found. Several more inquiries were made in 1995, 1999, 2000 and 2001, but all attempts at establishing these two defendants’ whereabouts proved unsuccessful.

Between 10 March 1995 and 31 August 2000 the applicant sent at least eight letters urging the Maribor District Court (previously called the Maribor Basic Court) to accelerate the proceedings and/or asking for a case review by the president of the court owing to delays in scheduling the first retrial hearing.

In the period from 20 May 1999 to 25 September 2001 the court scheduled five hearings, all of which were, however, adjourned for failure of some of the defendants to appear.

On 5 January 2001 the Director of the Department for Judicial Administration at the Ministry of Justice informed the applicant that the court had encountered difficulties identifying some of the defendants’ residences. He also noted that between 28 May 1990 and 27 September 2000 there had been frequent changes of the presiding judge in her case due to judges being promoted. He mentioned that in the aforementioned period seven different judges had been dealing with the case.

Following this information, on 9 March 2001 the applicant suggested that the charges against the two defendants, one charged with rape and the other with aiding and abetting rape, who were allegedly residing in Austria and could not be found, be severed into a separate case and an international arrest warrant be issued against them.

On 29 May 2001 the Maribor District Court issued a detention order against the two defendants, which served as a legal basis for the issuing of the international arrest warrant.

On 22 November 2001 the court held the first hearing, followed by four more. It also obtained reports from two experts, one in neuropsychiatry and the other in clinical psychology.

On 4 June 2002 the court found one defendant guilty of rape under the first paragraph of Article 180 of the Penal Code and five defendants guilty of aggravated rape under the second paragraph of Article 180 of the Criminal Code. Regardless of the fact that they were tried as juveniles, the rules of sentencing applicable to adults applied to them as they had all reached the age of twenty-one before the judgment was given. The defendants were sentenced to prison sentences ranging from eight months to one year on account of, inter alia, the significant passage of time from the commission of the crime until their conviction. However, the court concluded that prison sentences were appropriate in order to make the defendants realise the gravity of their offences, particularly as they had not shown any genuine regret over the criminal acts committed against the applicant who continued to suffer from the consequences thereof. Lastly, the court acquitted the two defendants who had been charged with sexual assault.

The convicted defendants appealed; however, their appeals were dismissed by the Maribor Higher Court on 25 January 2006. Their subsequent extraordinary appeals (requests for the protection of legality) were also dismissed by the Supreme Court on 12 July 2007.

The defendant charged with aiding and abetting the rape of the applicant, whose whereabouts had been unknown and whose case had been separated from the main proceedings, was extradited to Slovenia on 9 March 2004. On 30 March 2004 the court held a hearing and found the defendant guilty. He was sentenced to eight months in prison. The defendant’s subsequent appeal was dismissed on 4 August 2004.

The other missing defendant was arrested in Slovakia and detained on 21 February 2003. After having been extradited to Slovenia, the court held hearings on 4 and 5 September 2003 and on the latter date convicted him of aggravated rape under the second paragraph of Article 180 of the Penal Code. He, too, was sentenced to eight months in prison. He appealed against the verdict; however, on 9 June 2006 his appeal was dismissed by the Maribor Higher Court.

On 22 September 1995 the applicant lodged a civil claim against all ten defendants and a number of the defendants’ parents, seeking compensation for non-pecuniary damage she had sustained as a result of the rape.

On 17 June 2002 the civil panel of the Maribor District Court stayed the civil proceedings pending a final decision in the criminal proceedings. The civil trial was resumed in November 2007.

Subsequently, two hearings were held and on 21 January 2009 the first instance court gave a judgment awarding the applicant 16,691.70 euros (EUR), together with default interest. The applicant and some of the respondent parties appealed. On 10 March 2010 the Maribor Higher Court upheld the applicant’s appeal and dismissed the respondents’ appeal. In the civil retrial, the District Court found that the two respondents who had initially been excluded from liability for damages owing to their acquittal in the criminal proceedings were jointly liable for the damages awarded to the applicant.

One of the two respondents appealed against the judgment, but on 9 November 2011 the Maribor Higher Court dismissed his appeal.

Following unsuccessful settlement negotiations with the State Attorney’s Office, on 30 November 2009 the applicant lodged a claim with the Celje Local Court seeking compensation in the amount of EUR 5,000, the maximum amount that could be awarded for non-pecuniary damage incurred as a result of the length of the criminal proceedings. She relied on the Protection of the Right to a Trial without Undue Delay Act (hereinafter “the 2006 Act”). She submitted that her interest in the criminal proceedings had not only been of a pecuniary nature but also aimed at safeguarding her rights under Article 3 of the Convention.

On 16 November 2010 the court rendered a judgment, finding that the applicant’s right to trial within a reasonable time had been breached and that the State was to pay EUR 5,000 to the applicant, together with default interest. The court pointed out that the overall duration of the proceedings had amounted to fifteen years and nine months, noting in particular the lack of any activity between April 1991 and March 2001. Moreover, it observed that the applicant’s case had involved two major criminal acts, a gang rape and a sexual assault, which, in addition to posing a considerable threat to society, had caused severe mental distress to the applicant. The court emphasised that due to the nature of these criminal acts committed against her, the criminal proceedings ought to have been conducted in a particularly diligent, determined and prompt manner; however, that had not been the case. It was further noted that the lengthy proceedings had been extremely stressful for the applicant, who had been forced to relive the painful events too many times, in addition to which she had had no effective remedies at her disposal in order to accelerate the proceedings. Thus, having regard to the importance of the case for the applicant and the lengthy period of absence of any procedural acts on the part of the criminal court, the court deviated from the general practice of the domestic authorities to award, within the statutory range of between EUR 300 and 5,000, 45% of the sum that would be awarded for a violation of the right to trial within a reasonable time by the Court. Thus, the applicant was awarded the maximum amount possible under the 2006 Act, although she would have apparently not been entitled to such amount purely on the basis of the excessive length of proceedings.

The applicant and the State Attorney lodged appeals. On 4 August 2011 the Celje Higher Court modified the first-instance judgment in so far as it concerned the costs of proceedings. It rejected the remainder of the appeals.

On 13 October 2011 the applicant lodged a constitutional appeal and initiative petition for the review of the constitutionality of the 2006 Act in so far as it limited the maximum amount to be awarded for a violation of the “reasonable time” requirement to EUR 5,000. She alleged that the statutory limitation of compensation in this manner was unconstitutional, as the maximum amount did not constitute sufficient redress for particularly arduous cases such as her own.

On 10 February 2012 the Constitutional Court rejected the constitutional appeal as inadmissible. Consequently, the applicant’s petition for the review of the constitutionality of the 2006 Act’s limitation on compensation was also rejected, as the court held that the possible annulment of the challenged statutory provision could not have had any legal effects on the applicant’s position.

At the time of the incident, the applicable criminal law was the 1977 Criminal Code of the Socialist Republic of Slovenia. However, in the course of the retrial proceedings, a new Criminal Code was adopted in 1994 introducing more lenient sentences for the criminal offences of rape and aggravated rape. In accordance with the general principle of domestic criminal law that a law more lenient on the perpetrator may be applied retroactively, Article 180 of the 1994 Criminal Code was used in the proceedings, which reads, in so far as relevant, as follows:

“(1) Whoever compels a person of the same or opposite sex to submit to sexual intercourse with him by force or threat of imminent attack on life or limb shall be sentenced to imprisonment for not less than one and not more than ten years.

(2) If the offence under the preceding paragraph has been committed in a cruel or extremely humiliating manner or successively by at least two perpetrators or against an offender serving a sentence in a closed or semi-open type of penal institution, the perpetrator(s) shall be sentenced to imprisonment for not less than three years.

Section 286(2) of the Criminal Procedure Act 1994 provides that the presiding judge shall schedule a first trial hearing within two months of receipt of the indictment. If he fails to do so, he must inform the president of the court thereof, and the latter is required to take the necessary steps to schedule the hearing. A provision to this effect was also included in the previously applicable Criminal Procedure Act 1977.

According to Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded in the event of the infringement of a person’an award.

Under Section 2 of the 2006 Act, the right to a trial within a reasonable time is guaranteed to, amongst others, injured parties in criminal proceedings. Section 16 of the Act provides for a compensatory remedy and fixes the maximum amount that may be awarded. It reads as follows:

“(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.

(2) Monetary compensation in respect of individual, finally decided cases shall be awarded in an amount of between 300 and 5,000 euros.

(3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, the actions of the State, the actions of the party [making the claim] and the importance of the case for that party.”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1959 and lives in Moscow.

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

On 24 November 2006 the applicant, the owner and CEO of a large dairy producer, was charged with large-scale fraud and money laundering and summoned for questioning. He did not show up for a few initial interviews and the investigator put his name on the list of fugitives from justice.

On 26 January 2007 the investigator, acting on the information that the applicant had fled abroad, asked the Ostankinskiy District Court in Moscow for a detention order.

The detention hearing was fixed for 1 February 2007. The applicant’s lawyers had been notified of the date and time of the hearing on the previous day but did not show up and asked the investigator to postpone the examination of his application because they were busy in other proceedings. The District Court appointed legal-aid counsel to represent the absent applicant, proceeded with the hearing and issued the detention order, referring to the fact of the applicant’s absconding to Ukraine and from there to Hungary, the gravity of the charges against him and the risk of interference with the investigation. On 9 February 2007 the applicant’s lawyers appealed.

On 15 February 2007 the applicant was arrested in Moscow.

On 19 March 2007 the Moscow City Court heard an appeal against the detention order. The applicant and his lawyers were present at the hearing. Considering that the risks of flight and obstruction of the investigation were sufficiently established, the City Court upheld the detention order.

The applicant’s detention was later extended on nine occasions. The applicant appealed against each of the detention orders, lodging statements of appeal within two to ten days of the hearing date. It took the appeal courts between twenty-six and sixty days to examine the complaints.

The most recent detention order of 25 July 2008 was quashed on appeal by the Supreme Court on 2 October 2008. The Supreme Court considered that there was no evidence substantiating the risk of absconding or interfering with justice. The investigation had been pending for over two years of which the applicant had spent more than a year and a half in custody. The Supreme Court concluded that that the proceedings had been unreasonably long and ordered the applicant’s release on bail.

While in custody, the applicant asked the investigator to be allowed to receive visits from his mother, wife and children and also pastoral visits from two Orthodox priests, A. and S.

With the investigator’s consent, the applicant’s mother and daughters visited him on two occasions in April and May 2007. In August and September 2007 the investigator interviewed his wife and mother as potential witnesses but they refused to testify, invoking the constitutional guarantee against self-incrimination. The investigator refused the applicant’s subsequent applications to see his family, stating that such visits could “have a negative influence on the conduct of the investigation”. As to the Orthodox priests, on 29 March 2007 the investigator invoked the same ground to refuse a visit from S. On 30 August 2007 the investigator once again refused a pastoral visit, stating that the applicant should see the prison chaplain instead.

Counsel for the applicant applied for a judicial review of visiting restrictions.

On 24 October 2007 and 6 February 2008 the Tverskoy District Court pronounced the refusal of pastoral visits to be lawful and justified, holding that the investigator had full discretion to determine whether or not such visits ran counter to the interests of the investigation. On 18 June 2008 the City Court upheld the latter decision on appeal, holding that a restriction on religious rights was an inherent consequence of the pre-trial detention.

As regards family visits, on 30 October 2007 the Tverskoy District Court granted the applicant’s complaint in part, finding as follows:

(a) restrictions on visits from the applicant’s wife and mother in the period after the investigator had interviewed them as witnesses in the criminal proceedings had been lawful and within the discretion of the investigator;

(b) restrictions on visits from the wife and mother in the preceding period had not been justified but no relief could be afforded to the applicant because they had already been granted the status of witnesses and the investigator might wish to interview them again at some point in time;

(c) restrictions on visits from the applicant’s children were not justified and the investigator had an obligation to remedy a breach of the applicant’s rights.

On 10 December 2007 the applicant’s representative before the Court, Ms Kostromina, asked the director of the remand prison to allow her to see the applicant and provided credentials confirming her status. Her application was referred to the investigator.

On 24 January 2008 Ms Kostromina lodged a complaint with the Preobrazhenskiy District Court claiming that the prison director should have authorised her visit without any restrictions, on the basis of Article 34 of the Convention guaranteeing unhindered access of an applicant to his representative.

On 15 February 2008 the District Court dismissed the complaint, finding that Ms Kostromina was not the applicant’s counsel in the domestic criminal proceedings and could not therefore visit him. On 6 May 2008 the Moscow City Court upheld that decision on appeal.


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano

The applicant was born in 1965 and lives in Reykjavik. At the material time he was an editor of the web-based media site Pressan.

On 2 November 2010 two adult sisters published an article and a letter on their website encouraging people to study the background of candidates in the forthcoming Constitutional Assembly elections. In particular, the sisters warned against A, a relative of theirs, who was standing for election. In the letter they alleged that A had sexually abused them when they were children. The sisters had previously sent the letter to their relatives, the police and the child protection services. For some unknown reason, the police had not instigated an investigation.

On 7 November 2010, Pressan published an article about the sisters’ allegations. The article was based on an interview with one of the sisters and on the letter posted on their website. A was also contacted and his response, in which he denied the allegations, as well as his statement that he would not make any further remarks on the matter, were reported in the article. Pictures of the sisters were published with the article.

On 8 November 2010 Pressan published an article about comments made by A to a newspaper where he rejected all the allegations and threatened Pressan with a lawsuit for being the first to publish the allegations. Furthermore, the article contained comments from one of the sisters. Pictures of one of the sisters and of A were published with the article.

On 27 January 2011 Pressan published an article about the sisters’ having received a letter from A’s lawyer offering to settle the matter, failing which A would bring defamation proceedings against them, and about the sisters welcoming the opportunity to prove their allegations in court. The article was based on an interview with the sisters and statements on their website. A’s rejection of the allegations was also included in the article. Pictures of the sisters were published with the article.

On 22 and 23 February and 30 May 2011, Pressan published further articles about the matter, based on the sisters’ statements on their website and in other media interviews, on A’ s comments in other media and on A’s daughter’s comments in a television interview. Pictures of the sisters were published with all the articles.

Other media also published articles and interviews with the sisters.

In the meantime, on 10 April 2011, A lodged defamation proceedings before the Reykjavík District Court against the applicant and requested that the following statements be declared null and void:

A. “Sisters: We will not keep quiet while a child abuser stands for election to the Constitutional Assembly”

B: “We cannot sit quietly by while a child abuser stands for election to the Constitutional Assembly”

C: “I do not know whether our actions are legal, however that is a secondary point. The man is dangerous and on the loose”

D: “The sisters will not be silenced by [A’s] daughter – Child abuse is not the private affair of his family”

E: “Child abuse is never a private affair that the family of child abusers can undertake to solve. Child abuse is a crime”

F: “Child abusers should not be allowed to hide – Forgiveness cannot entail codependency”.

According to Section 15, subsection 3, of the Printing Act (no. 57/1956, Lög um prentrétt) the publisher or editor is liable for the publication if no author is identified. A argued that responsibility for the statements lay with the applicant as the editor of Pressan by virtue of Section 15 of the Printing Act, applied by analogy, since the author of the articles was not identified.

During the proceedings before the District Court, B, a journalist, was identified as the author of the articles. He gave a statement before the District Court, but was not involved further in the proceedings. B stated that he had contacted A for comments before publishing all the articles, but he had been unsuccessful after publishing the first article. He also stated that he had tried to establish the sisters’ credibility and the truthfulness of the allegations by interviewing the sisters, A’s son, the police, one of the sisters’ employers, another alleged victim and other people mentioned by the sisters in their writings, who could confirm that the allegations were not appearing for the first time because of A’s candidacy, but had been known to the family and the police for years. B had also tried to contact the Child Protection Services, without success.

Before the District Court, the sisters stated that they had been quoted correctly in Pressan and they had approved the publishing of their statements. Furthermore, they said that A had not initiated defamation proceedings against them.

By judgment of 22 February 2012 the District Court found in favour of the applicant.

As regards the issue of legality, the District Court came to the conclusion that Section 15 of the Printing Act did not apply to material published solely on the internet and that section 15, subsection 3, could not be applied by analogy in the case. However, the District Court stated that a supervisory obligation was placed on editors of web media, where articles were published without identifying the authors, and that the editor was obliged to ensure that material published on web-based media did not cause others harm or interfere with a person’s private life. Therefore, the District Court rejected the applicant’s claim that the case was wrongly directed against him.

As regards the merits of the case, the judgment contained the following reasons:

“The impugned statements were published on [Pressan] on 7 November 2010 after [A] had, along with about 500 people, declared his candidacy for the Constitutional Assembly. It was a gathering of 25 elected members, established by law by Parliament, which would prepare a proposal for a new constitution. There would be general elections, where the same rules about eligibility and the right to vote applied as in the Parliamentary election”...

When the statements in sections A-C are compared to the sisters’ writings on their website on 2 November 2010, the court has to agree with [the applicant] that both the headline in section A and the statements in sections B and C are verbatim from their letter. [...] Furthermore, it cannot be overlooked that the sisters’ allegations were not emerging for the first time because of [A’s] candidacy; they had been proclaimed for at least a few years and were known to many, including the police. [The applicant] was therefore not publishing allegations that were being directed against [A] for the first time, but disseminating further allegations regarding offences that had emerged long before. [The applicant’s] arguments about the public having the right to be informed about the candidates in public elections cannot be ignored. By introducing themselves publicly to gain voters’ confidence and to persuade people to vote for them, [candidates] in a way become public persons and cannot expect all media coverage about them to be as positive as their own. Disputes, resolved and unresolved, regarding their earlier behaviour are matters to which one can expect attention to be drawn. By competing for voters’ attention, candidates usually undertake to be heavily criticised and have to tolerate this up to a point, although that point should be determined on a case-by-case basis. [The applicant] did not present the sisters’ allegations as his own, he just disseminated them further. Therefore, he will not be held accountable for the statements which are directly quoted from the sisters, which the latter have confirmed before the court to be theirs. The court does not agree with [A] that [the applicant] went beyond the limits of his freedom of expression under Article 73 of the Constitution. ...

The statements in sections D and E were published on 23 February 2011 when the elections for the Constitutional Assembly were over. [A’s] daughter had discussed the sisters’ writings about her father in a television interview and declared, inter alia, that he was not a public person and that allegations about child abuse did not belong in the media. The sisters reacted to this criticism on their website and then [Pressan] published their reactions. [...] No new discussions about [A’s] case were initiated by the sisters this time, their writings were by way of reply. The statement in section D that appeared as a headline on [Pressan] quotes the sisters’ replies but is partly rephrased. The statement in section E published in an article on [Pressan] is mostly directly quoted. However, this statement can be understood as a statement by the media itself. Even though the statement is not directly quoted, it is of a general nature and refers to child abusers in general. The sisters have also testified before the court that they consider that they have been correctly quoted. So the court concludes that [the applicant] did not go beyond the limit of the freedom of expression guaranteed in Article 73 of the Constitution, with the statements in sections D and E.”

On 1 August 2012 A appealed to the Supreme Court against the District Court’s judgment.

By a judgment of 21 February 2013 the Supreme Court partly overturned the District Court’s judgment and found defamatory the statements in sections A, B, D and part of the statement in section C, consisting of insinuations that A was guilty of having abused children, and ordered the applicant to pay, under the Tort Act, 200,000 Icelandic Krónur (ISK) (approximately 1,600 euros (EUR)) for non-pecuniary damage, plus interest in compensation and ISK 800,000 (approximately 6,500 EUR) for A’s legal costs before the District Court and Supreme Court. Under Article 241 of the Penal Code the statements were declared null and void.

As regards the issue of legality, the Supreme Court noted that the author of the articles had been identified and that the applicant had confirmed that he had agreed to the publication of the articles. The Supreme Court also confirmed that Section 15 of the Printing Act did not apply to material solely published on the internet. Furthermore, the Supreme Court stated that Section 15, subsection 3, of the Printing Act could not be applied by analogy to the case. However, the applicant had a supervisory obligation which entailed that he should conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory. The Supreme Court referred in this respect to a Supreme Court judgment of 24 November 2011. Therefore, the Supreme Court rejected the applicant’s claim about the case being wrongly directed against him.

As to the merits of the case, the judgment contained, inter alia, the following reasons:

“The court can agree with [the applicant] that candidates for assignments in the public interest have to endure a certain amount of public discussion of their ability and skills and attributes and whether or not they can be trusted to bear this kind of responsibility. However, this cannot justify that [A], without any further or additional information, was accused of this criminal act in the media, [act] punishable by the Penal Code. Here it has been taken into account that [A] has not been found guilty of the conduct nor has he been under investigation because of it. It does not change anything that the journalist discussed the matter with [A] and others, who claimed they could testify about the incident, while working on the story and [A] rejected the allegations. In the light of the aforementioned, the limitation on the freedom of expression had to be justified in accordance with Article 73(2) of the Constitution.”...


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1967 and lives in Kalinkovichi.

On 29 March 2008 the applicant was stopped by a Russian customs officer at the border crossing into Belarus. After having checked the applicant’s documents, the officer informed the applicant that, having failed to declare his Opel car when entering Russia, he had infringed the Russian customs regulations. The officer instituted administrative proceedings against the applicant and impounded his car.

On 11 June 2008 Colonel B., Head of the Novozybkov Customs Post of the Bryansk Customs Office, examined the applicant’s case. He found the applicant liable for having failed to declare the car and ordered him to pay a fine in the amount of 35,509.50 Russian roubles (RUB). He further ruled that the applicant’s car, which had been impounded by customs, should be returned to the applicant. The applicant appealed.

On an unspecified date the Novozybkov Town Court of the Bryansk Region fixed the hearing for 8 August 2008.

On 8 August 2008 the Town Court examined the applicant’s appeal and upheld the decision of 11 June 2008. The court heard the case in the applicant’s absence. In the operative part of the judgment, the court advised the applicant of his right to appeal against the judgment adopted by the Town Court.

According to the applicant, the letter from the Town Court notifying him of the date and time of the court hearing reached him on 9 August 2008.

On 26 September 2008 the applicant received a copy of the Town Court’s judgment of 8 August 2008 by post.

On an unspecified date the applicant lodged an appeal with the Bryansk Regional Court. On 13 November 2008 the Regional Court sent a letter to the applicant informing him that his appeal was dismissed.

The subsequent request by the applicant for supervisory review was dismissed by the Supreme Court of the Russian Federation on 26 January 2009.

On 20 August 2009 the Acting Head of the Novozybkov Customs Post of the Bryansk Customs Office discontinued the enforcement proceedings in respect of the decision of 11 June 2008. He noted that the applicant was a foreign national and had no assets or known place of residence in the Russian Federation and that it was impossible to enforce the decision of 11 June 2008 on account of the expiry of the relevant time-limit.

On 24 August 2009 the Bryansk Customs certified that (1) the decision concerning the applicant’s administrative liability had come into force on 15 July 2009; and (2) the applicant had failed to reclaim his car within a month of that date.

On an unspecified date the regional agency in charge of the federal property applied to the Town Court seeking to reclaim the applicant’s car as bona vacantia.

On 12 November 2009 the Town Court granted the agency’s claims in full. It took into account that, as claimed by the agency, the applicant had been repeatedly summoned to the regional customs office to pick up his car. According to the documents submitted by the Government, the court decided to hear the case in the applicant’s absence given that he had been duly notified of the hearing and chose not to attend. The applicant did not appeal.

On 2 June 2010 the judgment of 12 November 2009 was enforced.

On 19 March 2012 the leaders of the Strategy-31 movement notified the Mayor of Moscow of their intention to organise a rally (from 6 to 8 p.m.) at Triumfalnaya Square in the centre of Moscow and a march (from 8 to 8.30 p.m.) from Triumfalnaya Square down Tverskaya Street to Manezh Square on 31 March 2012 (Saturday). Approximately 1,500 people were expected to attend. The events were organised to promote the right to peaceful assembly as set forth in Article 31 of the Constitution of the Russian Federation and the freedom of Parliamentary elections in Russia.

On 20 March 2012 the Government of Moscow refused to agree on the venues for the rally and the march. According to the authorities, there was archeological and construction work going on in Triumfalnaya Square and the march, according to the indicated route, would “disrupt the normal functioning of the city’s infrastructure and traffic [and] infringe the rights and interests of people who would not take part [in the rally and the march]”. The authorities further suggested two alternative venues for the planned events, also located in the centre of Moscow.

On 29 March 2012 the leaders of the Strategy-31 movement informed the Mayor of Moscow that the rally would take place at the venue indicated in their notification of 19 March 2012.

On 31 March 2012 the rally was held as planned by its organisers at Triumfalnaya Square. The applicant took part. At 6.30 p.m. he was arrested and brought to the police station. According to the arrest record, the applicant had taken part in an unauthorised gathering and chanted slogans such as “Down with Putin”, “Let us stop the dictatorship” and “Fascism shall not pass”.

On 17 April 2012 the Justice of the Peace of Precinct no. 367 of the Tverskoy District of Moscow found that the rally held on 31 March 2012 had been organised in contravention of the existing procedure and that the applicant had taken part in it without having verified whether it had been legitimate. The court found the applicant administratively liable for violation of the established procedure for organising a public assembly and fined him RUB 500. The applicant appealed.

On 21 May 2012 the Tverskoy District Court of Moscow upheld the decision of 17 April 2012 on appeal.


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant in the first case, Ms Dorothea Sihler-Jauch, is a German national who was born in 1958. The applicant in the second case, Mr Günther Jauch, is a German national who was born in 1956. Both applicants live in Potsdam and were represented before the Court by Ms K. Schmitt, a lawyer practising in Berlin.

The second applicant is a well-known journalist, producer and television presenter. The television shows he was presenting at the relevant time included a political talk show and a news magazine.

The applicants married in July 2006. The wedding reception was held in the Belvedere, an ancient palace surrounded by an English garden in Potsdam. The wedding ceremony took place in the Friedenskirche, also in Potsdam. Both locations are well-known tourist attractions and are generally open to the public.

Among the 180 wedding guests were well-known journalists, television presenters and sports personalities. The mayor of Berlin also attended the wedding.

Due to the anticipated media interest in the wedding, the applicants’ legal representative had informed the relevant newspapers beforehand that the applicants did not wish any reports to appear containing details of the wedding. In addition, both locations were closed to the public and only invited guests were allowed inside.

On 13 July 2006 the magazine Bunte, a so-called “people’s magazine” with a circulation of approximately 650,000, published an article about the wedding. The article was announced on the cover of the magazine and illustrated with several photographs. Besides photographs of wedding guests and old photographs of the applicants, one photograph showed the first applicant on her wedding day, taken before the wedding ceremony inside the restricted area. It was (erroneously) captioned “NEWLY WED Thea Sihler after the wedding vows” (FRISCH GETRAUT Thea Sihler nach dem Jawort). During the subsequent civil proceedings, the question of where the photograph of the first applicant had been taken from was a matter of contention. While the applicants asserted that it had been taken from outside the restricted area, through a hole in the wall ‒ using a strong telephoto lens ‒ the magazine maintained that they had no information regarding the photograph’s provenance since it had been purchased from a stock photographic agency. They speculated, however, that it could just as easily have come from one of the accredited photographers, or from an invited guest, or from a member of staff.

The article itself informed the reader about the precautions taken by the applicants to prevent press coverage but also gave details about the wedding, including the nature of the catering, the drinks, the applicants’ outfits, the music and the decoration of the church. The article also included quotes from the address given by the priest, and from the speeches of the second applicant and the first applicant’s father, as well as an excerpt from an intercessory prayer recited by one of the applicants’ children.

After publication of the article and at the request of the applicants, the magazine signed a cease and desist declaration regarding the further publication of a number of statements from the article outlining the details of the wedding. The magazine refused to sign such a declaration in respect of the above-mentioned photograph of the first applicant.

On 1 August 2006 the Berlin Regional Court issued a cease and desist order in respect of further publication of the photograph of the first applicant on her wedding day.

The first applicant brought proceedings against the magazine, claiming EUR 250,000 as a notional licence fee, EUR 75,000 in damages and EUR 997.37 of pre-trial expenses for the cease and desist declaration.

On 11 January 2008 the Hamburg Regional Court reaffirmed the cease and desist order, awarded the applicant EUR 25,000 in damages and ordered the magazine to reimburse the pre-trial expenses.

The court held that the article concerned an event of public interest because the second applicant was one of the most famous and popular television presenters in Germany, who had a strong influence on shaping public opinion. His wedding was therefore anyway of public interest and even more especially so since the public were interested in knowing who had a sufficiently close relationship with him to be invited to attend his wedding. The latter point was of particular importance in terms of enabling the public to judge the second applicant’s journalistic independence. The court also found that the chosen wedding locations increased the level of public interest in the wedding, since the two places were amongst Germany’s most popular tourist attractions. The court found that neither the article nor the photograph showed the applicants in a negative light, nor were they in any way derogatory. Nor did the photograph touch on the core of the applicants’ privacy, as it did not show the wedding ceremony itself. Nonetheless, the court found that publication thereof had not been justified by a legitimate interest as the first applicant had chosen to retreat to a secluded place, away from the public eye. Furthermore, the applicants had made clear their intention to prevent press coverage of their wedding by asking the press to refrain from reporting it and taking precautions to create a degree of seclusion by restricting access to the wedding location(s).

However, the court held that publication of the article alone ‒ regardless of the accompanying photograph ‒ constituted a serious enough violation of the first applicant’s personality rights to justify damages. In particular the publication of core details of the wedding party and ceremony ‒ such as quotes from the speeches, the range of drinks and food offered during the wedding and the choice of music ‒ could not be justified by any public interest but rather constituted a voyeuristic intrusion into the applicants’ privacy. Concerning the notional licence fee, the court held that it could not be considered normal commercial practice to pay royalties to the subjects of a news report. Consequently the magazine had not saved royalties which they would normally have had to pay to the first applicant for publishing the report and the photograph.

On 21 October 2008 the Hamburg Court of Appeal set the Regional Court’s judgment aside and dismissed the first applicant’s action in its entirety. It confirmed the Regional Court’s reasoning regarding public interest on the basis of the popularity of the wedding locations. It furthermore, and in particular, emphasised that, owing to the influence of the second applicant on public opinion and his role in presenting political television shows, the public had a legitimate interest in knowing who was invited to his wedding ‒ including the mayor of Berlin ‒ and to judge whether the public opinion presented by him was consistent with or contradictory to his real life. As the wedding was a shared event in the life of both the applicants, the first applicant was obliged to accept the public’s interest in the life of the second applicant.

However, the court disagreed with the findings of the Regional Court concerning the level of interference with the first applicant’s personality rights. It held that the details published about the wedding, such as information regarding drinks, food and music, were not core private issues but constituted information that was generally discussed and of interest in the context of a wedding. Furthermore, the court pointed out that it was normal practice and to be expected that, in the context of a wedding, photos would be taken by different people, whether invited guests or not. As the photo of the first applicant did not show her in a negative light and was not published on the front page of the magazine, its publication could be justified by public interest. Lastly, the Court of Appeal gave special consideration to the publication of quotes from the priest’s address, the speeches of the second applicant and the first applicant’s father, and an excerpt from an intercessory prayer recited by one of the applicants’ children. It reasoned that this information was more intrusive than the rest of the published details. Nonetheless, even though the wedding was not open to the general public, around 180 guests had been invited, and they were not bound to confidentiality. As these guests were not all part of the core family, the speakers and the applicant had to accept that certain information would be communicated to persons who were not invited and to the general public. In conclusion it reasoned that the mere desire on the part of the applicants to have no press coverage could not outweigh the legitimate public interest in the wedding, the published details and the photograph.

The first applicant’s complaint against the refusal of leave to appeal on points of law was rejected.

On 12 May 2010 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint, without providing reasons (1 BvR 760/10).

The second applicant also brought proceedings against the magazine, claiming damages of at least EUR 25,000 and EUR 1057.69 in pre-trial expenses for the cease and desist declaration.

On 24 April 2009 the Hamburg Regional Court dismissed the second applicant’s action. It endorsed the reasoning of the Hamburg Court of Appeal and quoted its judgment of 21 October 2008 at length.

The applicant’s appeal and complaint against the denial of leave to appeal on points of law were rejected.

Article 5 §§ 1 and 2 of the Basic Law (Grundgesetz) guarantee freedom of expression and the freedom of the press and provide that these freedoms are subject to the limitations laid down in the provisions of the general laws and in the statutory provisions for the protection of young people and are also subject to the obligation to respect personal honour (Recht der persönlichen Ehre).

Section 22 § 1 of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) provides that images can only be disseminated with the express consent of the person concerned. Section 23 § 1 (1) of the Act provides for exceptions to that rule in cases where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) as long as publication does not interfere with a legitimate interest of the person concerned (section 23 § 2).

Article 823 § 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to furnish compensation for the resulting damage. Article 253 of the Civil Code stipulates that monetary compensation may be demanded in respect of non-pecuniary damage only in the circumstances provided for by law. These include an injury to a person’s body, health, freedom or sexual selfdetermination.