Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

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

The applicant was born in 1950 and lives in Amöneburg.

In April 2005, the applicant published an article in a local newspaper concerning the political orientation of the Berger-88-e.V. association (“the association”). Subsequently, the newspaper published the association’s response to that article describing the applicant’s statements as “intellectually weak and crude” (“geistig schwach und primitiv”) and as “pamphlets constituting a public danger” (“gemeingefährliche Pamphelete”). The newspaper also published two letters to the editor. One of them was written by F.G., an elected town councillor, who contended that the association had no extreme right-wing tendencies (“keine rechtsradikale Vereinigung”). He expressed that it was “unfortunate that [the applicant] again and again manages to publicize his false accusations and to show himself as a pitiful victim” (“[...] bedauerlich, dass es Herrn Dr. Brosa immer wieder gelingt, seine falschen Anschuldigungen öffentlich zu machen und sich als bedauernswertes ‘Opfer’ darzustellen [...]”). He contended that “he [the applicant] had evoked the current situation in particular by his constant spying and false accusations” (“Die derzeitige Situation hat er insbesondere durch seine ständigen Bespitzelungen und Falschbehauptungen heraufbeschworen [...].”).

F.G. was also running for the office of town mayor. In the run-up to the elections the applicant then distributed a leaflet with the headline: “Don’t vote for an agitator” (“Wählen Sie keinen Scharfmacher”). The text on the leaflet maintained: “Amöneburg is the seat of several neo-Nazi organisations. Particularly dangerous is the Berger-88-e.V., for which F.G. [last name written out] is providing a cover.” („Amöneburg ist Sitz mehrerer Neonazi-Organisationen. Besonders gefährlich sind die Berger-88-e.V., die F.G. deckt.“). The leaflet also showed photos of F.G.’s son, the association’s chairman at the time, taken by a security camera on the applicant’s property late at night. The applicant explained that he had previously been attacked and that his door had been smashed repeatedly at night.

On 6 July 2005 the Kirchhain District Court, at F.G.’s request, issued a civil injunction prohibiting the applicant from distributing the leaflet and making other assertions of fact (Tatsachenbehauptungen) which might depict F.G. as a supporter of neo-Nazi organisations. Any contravention was punishable by a fine of up to 250,000 euros (EUR) or by imprisonment of up to six months. The court reasoned that the assertion that F.G. had covered for a particularly dangerous neo-Nazi organisation had infringed his personality rights. Because of the upcoming elections, the court found that there was a risk that the applicant might continue to distribute the leaflet or disseminate the allegations in another form.

The applicant lodged an objection with the Kirchhain District Court. He submitted, inter alia, that the designation “88”, standing for the eighth letter of the alphabet [H] as a reference to “Heil Hitler”, was displayed by members of the association in runes and thus in a form attributed to neoNazism by the German federal domestic intelligence service (Bundesamt für Verfassungsschutz). In addition, the association had held a ceremony on the weekend after Hitler’s birthday using the colours black, white and red – the national colours of the German empire – for the invitation. In support of his allegations, the applicant referred to the association’s statutes and an incident in which members of the association had shouted “Heil Hitler” on the occasion of an Easter bonfire organised by the association. Lastly, he contended that there was no longer any reason for upholding the injunction, as the mayoral elections had taken place in the meantime.

In its judgment of 18 August 2005 the Kirchhain District Court upheld the injunction. It found that to claim that someone was supporting a neo-Nazi organisation amounted to an infringement of that individual’s honour and social reputation and thus his or her personality rights (allgemeines Persönlichkeitsrecht).

The court held that the applicant had failed to provide sufficient evidence to support his allegation that F.G. had covered for a neo-Nazi organisation. His submissions were mere conjectures and subjective interpretations. As a consequence, the court held, the applicant could not rely on the notion of freedom of expression enshrined in Article 5 of the Basic Law (see paragraph 19 below).

The court reasoned, inter alia, that in accordance with its rules, the association had been founded in 1988, even though it had not been registered until 1992. Hence, the reference to the number 88 in the name of the association could not be interpreted as support for neo-Nazism. As regards the Hitler salute on the occasion of the Easter bonfire, the applicant had failed to show that the individuals concerned were “without doubt” members of the association. The court acknowledged that the use of runes might indeed refer to neo-Nazism, but held that that did not suffice to prove that the association was of such a character. Lastly, the court emphasized that the applicant had “confirmed his determination not to let himself be silenced as a critic of the plaintiff”. Hence, the court found that the injunction needed to be maintained despite the fact that the mayoral elections had taken place in the meantime.

On 28 June 2006 the Marburg Regional Court dismissed the applicant’s appeal against the District Court’s judgment. The court noted, however, that there was no longer a need to adjudicate on the prohibition of further dissemination of the leaflet, as the elections had taken place in the meantime.

The Regional Court explained that the leaflet contained two different allegations of fact: firstly, that the association was a particularly dangerous neo-Nazi organisation; and secondly, that F.G. had been aware of that fact but had nevertheless publicly supported the organisation. The applicant had failed to prove that those allegations were true. The court acknowledged that there were several indicators of the association’s neo-Nazi character “which, all in all, may lead to the assumption that this is not a mere coincidence”. The association therefore had to put up with critical questions. The aforementioned indicators were, however, not “compelling proof” (zwingender Beweis) of the association’s political orientation.

In any case, the court reasoned, the applicant had failed to provide any evidence for the allegation that F.G. had covered for the association. The court interpreted the applicant’s statement as an allegation that F.G. had knowledge of the association’s neo-Nazi orientation and endorsed it. Referring to the case-law of the Federal Constitutional Court, the Regional Court acknowledged that allegations of fact may fall, as a matter of principle, under the notion of freedom of expression of Article 5 of the Basic Law to the extent that they were aimed at forming public opinion (meinungsbezogene Tatsachenbehauptungen). The protection provided by Article 5 of the Basic Law required, however, that the allegations required substantial justification. The letter to the editor written by F.G. did not suffice in that regard.

On 19 July 2006 the applicant complained that his right to be heard before the Regional Court had been breached. He complained, inter alia, that the court had failed to examine the criminal files against members of the association in order to establish whether they had committed crimes of an extremist political nature.

On 22 January 2007 the Regional Court dismissed the applicant’s complaint. It held, inter alia, that the applicant had not sufficiently substantiated which files should have been examined and in which regard. Where the applicant had offered evidence by specifying a particular file, F.G. had not denied that members of the association, wearing pullovers with the association’s insignia, had been present at an election campaign event organised by him. Nor had F.G. denied that certain members of the association had committed crimes, although they were not necessarily of an extremist political nature. Lastly, the court emphasized that according to an assessment by the State domestic intelligence service (Landesamt für Verfassungsschutz), the association was a “fraternity” (“Kerbeburschenschaft”), which the service would nonetheless “keep an eye on”. The Regional Court thus concluded that the applicant might have raised a suspicion at the most, but had failed to prove the association’s neoNazi orientation.

On 2 March 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his freedom of conscience, his freedom of expression and his right to a fair trial had been violated. He claimed in particular that the courts had put the onus of proof on him, whereas in the context of the expression of one’s opinion it was impossible to provide evidence.

On 1 July 2008 the Federal Constitutional Court, without giving reasons, refused to admit the applicant’s constitutional complaint for adjudication (file no. 1 BvR 597/07).


CASE OF VERLAGSGRUPPE DROEMER KNAUR GMBH & CO. KG v. GERMANY

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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary

The applicant company is a prominent German book-publishing house with its registered office in Munich. In 2015 it was ranked among the ten publishing firms generating the highest turnover in the German publishing sector.

In September 2008 the applicant company published a book entitled “Mafia” written by Petra Reski, an author internationally renowned for her anti-Mafia publications. The book was reprinted in several editions and also published in Italy. It deals, in its 352 pages, with the Mafia’s ties to Germany, its inner structures and its various branches. The book also recounts an event which took place in 2007 in Duisburg where six people of Italian nationality were killed by fifty-six bullets in front of the Italian restaurant “Da Bruno”. The killings were supposed to be the culmination of a vendetta between two ‘Ndrangheta families which had started in 1991 in Italy. The incident received national and international media attention.

On pages 157 and 158 the book referred, by his full name, to a person called S.P., an Italian national residing in Germany. The relevant part reads as follows (translated, names abbreviated and emphasises added by the Court):

“... The public prosecutor’s office of Stuttgart investigated the Calabrian [L] for drug dealing and money laundering – he is said to have contributed to financing the electoral campaign of [O] with his funds. This was not to remain the sole link existing between a presumed member of the ʽNdrangheta and a German politician: in the city of Erfurt, the Calabrian [S.P.], who had been mentioned already in 2000 in a report prepared by the Federal Office of Criminal Investigation, gained notoriety. [S.P.] runs the restaurant ‘[Pa]’ in Erfurt: a restaurant seating 400 guests, not a bad rise for someone like [S.P.], who, according to statements of the investigators, had started out as a pizza baker in the pizza restaurant ‘Da Bruno’. After all, having contacts can be very helpful, even if, following the massacre of Duisburg, the pizza restaurant ‘Da Bruno’ no longer serves as that great a reference. In any case, [S.P.] continued to maintain his network of relationships in Erfurt by generously sponsoring the local golf club. When the police performed a search of the restaurant ‘[Pa]’ because of [S.P.]’s alleged involvement in a murder, it ran into the then Prime Minister of Thuringia, [B.V.], and his Secretary of the Interior, [R.D.] – both of whom had been dining there purely as a matter of chance, as [S.P.] asserted. He, by the way, had excellent relations with the police: when a further search was performed, the police found an identity card in his premises, which had been issued to him in his purported capacity as interpreter for the Uzbek delegation at an Interpol conference in Rome. The identity card, it was stated, had been issued by the Secretary of the Interior of the Saarland. ...”

As regards S.P.’s presumed membership of the ‘Ndrangheta, the applicant company relied on, inter alia, reports by the German Federal Office of Criminal Investigation of 2000 and 2008. Neither report had been made public.

The relevant passage in the report of 2000 reads:

“If one takes account of the enormous reputation that [S.P.] has and the esteem in which he is held by the Italian community, one forms the opinion that [S.P.] is a defacto fully-fledged member of the ‘Ndrangheta clan.”

The relevant parts of the report of 2008 read:

“According to Italian colleagues from Calabria and Bianco, this connection could have contributed to [S.P.] becoming a member of the Romeo alias ‘Staccu’ clan. Owing to the prestigious reputation [S.P.] enjoys in the ‘Italian milieu’, he has to be a full member of the ‘Ndrangheta.

Direct relatives of the clan live in Germany and run pizza restaurants. Their main bases are in the cities of Duisburg, Erfurt, and Leipzig. These bases are led by [A.M.], [D.G.] and [S.P.], with [D.G.] taking the role of the so-called ‘capo locale’.

[D.G.] and [S.P.] could be in charge of investing the proceeds of drug trafficking. This theory is corroborated by the high number of good restaurants and statements from various sources that [S.P.] is said to have invested in several restaurants and acquired real estate in Dresden and the surrounding areas.”

In 1997 S.P. had already been mentioned by name in the context of organised crime. He had been interviewed in a television report regarding the ‘Ndrangheta in Thuringia and had denied any membership of or connection to the ‘Ndrangheta.

After publication of the book, S.P. applied to a court for an injunction against the dissemination of the passages highlighted in the above excerpt of the book (see paragraph 8 above). On 13 November 2008, the Munich Regional Court issued the injunction and confirmed it on 15 December 2008 after hearing both parties. It held that even though there was a public interest in reporting about organised crime, the author had acted in breach of her journalistic duties. The internal reports of the Federal Office of Criminal Investigation constituted an insufficient source for the allegations made in the book, since the reports were not intended for publication. The investigating authorities themselves had not come to the conclusion that there was sufficient evidence of an offence having been committed by the plaintiff. Moreover, the Regional Court stated, a report on a suspicion also had to include the circumstances exonerating the party affected. Accordingly, the book should have stated that the investigating authorities had not obtained any indications which would have served as a basis for filing an indictment, much less a sentence, and that in fact the investigations pursued against the plaintiff had not resulted in any such bringing of charges or in any sentencing. In addition, the court held, the publication had not made it clear that the pizza restaurant “Da Bruno”, in which the murders had been perpetrated, was not identical to the pizza restaurant of the same name in which the plaintiff had worked as a pizza baker many years prior to those deeds. Lastly, the court continued, the book had been published unlawfully because the plaintiff had not been given any opportunity to make a statement regarding the suspicion prior to publication.

On 7 April 2009 the Munich Court of Appeal dismissed the applicant company’s appeal against the Regional Court’s judgment of 15 December 2008. It held that the book expressed a serious allegation that the plaintiff was a member of a criminal organisation and therefore seriously interfered with his personality rights. The section of the book dealing with the plaintiff did not allow an average reader to infer that the plaintiff’s membership of the criminal organisation ‘Ndrangheta could only be assumed vaguely. Rather, the court continued, the interplay of the many individual statements in the book created the impression that there was a very strong suspicion that the plaintiff was a member of the ‘Ndrangheta. The evidentiary facts researched by the author and published by the applicant company did not constitute sufficient proof of the exceptionally grave suspicion raised in the book. The court established that even the internal report by the Federal Office of Criminal Investigation only mentioned a number of vague suspicious circumstances, for the most part without providing any details or naming any specific sources. For example, it said that because of the high respect in which the plaintiff was held in the “Italian milieu”, he must be a fully fledged member of the ‘Ndrangheta. The internal reports only showed that owing to certain information compiled in them, some of which had not been corroborated by evidence, assumptions had been made as to the existence of certain connections. This did not seem to be a sufficient basis for publicly branding the plaintiff as a presumed ʽNdranghetista. Moreover, the court continued, certain statements in the book were incorrect, such as the region in which the plaintiff had been born. Other statements were fragmentary, as the investigation during which the plaintiff’s restaurant was searched by the police had been discontinued. In that regard, the court held that the book had failed to report exonerating circumstances. Even though authors did not have to await the outcome of an investigation before reporting on a corresponding suspicion, if the reporting on a suspicion was reliant on investigations that had been carried out six or seven years previously, the author could not ignore the fact that the investigation proceedings had come to an end without any charges having been brought.

In the main proceedings, in addition to his request that the injunction be upheld, S.P. applied for damages in the amount of EUR 20,000.

On 22 June 2011, the Munich Regional Court upheld the injunction, but dismissed the plaintiff’s application for damages. The Regional Court reiterated the reasoning it had given in the judgment of 15 December 2008 and that given by the Court of Appeal in its judgment of 7 April 2009 (see paragraphs 13-14 above). The court further reiterated that the author had not sufficiently researched the basis for the allegation that S.P. was a member of the ʽNdrangheta, since all the sources only indicated vague suspicious circumstances pointing at S.P. Secondly, the author had not complied with the “absolute requirement” of presenting exonerating circumstances. Lastly, the court held that the publication was unlawful as the author had not given the plaintiff the possibility to comment on the allegation prior to publication.

The Regional Court dismissed the plaintiff’s application for damages as being ill-founded. It held that even though the applicant company had breached the permissible boundaries of reporting on suspicions as well as its journalistic diligence, it had not done so in a serious manner. Accordingly, it sufficed to stop the dissemination of the impugned statements but did not require a payment of damages.

During the proceedings before the Regional Court the applicant company offered to furnish certain evidence supporting the suspicion published in the book. In particular, it offered to provide the names of witnesses who could allegedly confirm the statements made in the internal report of the Federal Office of Criminal Investigation and the suspicion published in the book. The Regional Court refused to hear the witnesses as it found that they would be unable to give evidence regarding the alleged membership and that the applicant company had failed to identify the specific issues on which the witnesses could testify.

The applicant company did not appeal against the judgment of the Regional Court. The plaintiff, however, appealed against the dismissal of his claim for damages. Consequently, in so far as the judgment ordered the injunction, it became final.

On 29 November 2011, the Munich Court of Appeal, in addition to the injunction, sentenced the applicant company to pay damages in the amount of EUR 10,000 and dismissed the plaintiff’s further claim for damages. The court stated that the prerequisite for any entitlement to pecuniary compensation was a serious violation of personality rights which could not be compensated in any other way. It found that that prerequisite had been met in the plaintiff’s case. As far as the violation of the plaintiff’s personality right was concerned, the Court of Appeal endorsed the reasoning of the Regional Court. It expressly conceded to the applicant company that there was great public interest in obtaining information about criminal organisations and “that the motivation of the author and of the defendant [in the instant case: applicant company] for informing the public on the activities pursued by the ‘Ndrangheta in Germany was commendable and honest”. However, the Court of Appeal continued, the applicant company had acted culpably to a significant extent. It had been grossly negligent on the part of the applicant company to disseminate an allegation based on a suspicion which seriously interfered with the plaintiff’s personality right in spite of the fact that the plaintiff had obviously not been given an opportunity to be heard and that the allegation had been disseminated without including the necessary information that the murder investigation addressed by the book subsequently had been discontinued. This charge of gross negligence could not be put aside because the author had tackled a subject of strong public interest. The applicant company should have realised that the information compiled about the plaintiff was not corroborated by evidence and that there were insufficient evidentiary facts to support the allegation reported in the book. The applicant company could not argue that it had not acted culpably, as it had based its publication on information obtained from a governmental authority. That principle, the court held, had been developed by the courts in adjudicating for official press releases issued by German authorities. However, the author had relied solely on internal analyses prepared by the Federal Office of Criminal Investigation as well as evaluation reports and documents generated in the course of intra-agency communications between Italian government authorities.

The Court of Appeal further reasoned that the injunction was not sufficient redress for the plaintiff, as it was not an adequate means of reaching the readers of a book that had already been published. Consequently, it found that the payment of damages was required. The court held that compensation in the amount of EUR 10,000, instead of the EUR 20,000 claimed by the plaintiff, was both sufficient and adequate.

On 28 March 2012 the Munich Court of Appeal dismissed as illfounded a complaint lodged by the applicant company that it had been denied the right to be heard.

On 19 November 2013, the Federal Constitutional Court refused to admit a constitutional complaint (1 BvR 82/12) lodged by the applicant company, without providing reasons.


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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1986 and lives in Sumy.

The applicant had relations with V., a female student born in 1989. On 24 March 2008 V. gave birth to their daughter. On 29 August 2008 the applicant and V. registered their marriage.

From the time of the birth of the child the couple and their daughter lived in the applicant’s flat in Sumy. The applicant’s parents lived in the same flat and assisted the parents in bringing up the child.

In 2009 the applicant and V. were absent from home for six months, as they were working abroad. During their absence the applicant’s parents took care of the child.

In October 2010 the child was admitted to a child-minding centre in Sumy.

Between 2010 and 2011 V. worked abroad for six months. During that time the child was taken care of by the applicant and his parents. While working abroad, V. transferred funds to the applicant to support the family.

Relations between the applicant and V. grew worse and on 20 September 2011, after a quarrel with the applicant, V. took the child and moved from the flat without the agreement or knowledge of the applicant. The applicant was not informed of the place to where V. and the child moved to live.

On 28 September 2011 the applicant asked the police to establish the whereabouts of the child. He and his parents also conducted their own enquiries.

As was further established in the course of the domestic proceedings, V. moved to the village of Bezdryk, near Sumy, where she apparently cohabited with her uncle, F. (born in 1967). The applicant’s child was admitted to the child-minding centre located in the same village.

On 1 December 2011 the applicant found the child at the Bezdryk child-minding centre. According to the applicant, the child’s body bore bruises. He took the child back to his flat in Sumy and the following day submitted her for medical examination.

On 2 December 2011 a forensic medical expert examined the child and reported a red spot on the chin, measuring 1.5 cm by 0.8 , which – in the expert’s opinion – was “a sign of an earlier abrasion”. The expert also documented two abrasions on the nose, measuring 0.4 cm by 0.3 cm and 0.3 cm by 0.2 cm; a bruise on the back, measuring 2 cm by 1 cm; two bruises on the right shin, measuring 1.8 cm by 1 cm and 1.5 cm by 1 cm; and a red, itchy spot in the abdominal area. The expert stated that the injuries could have been caused by blunt objects three or four days before the examination.

The applicant asked the police to carry out a criminal investigation in connection with the injuries sustained by his daughter, who had allegedly explained that the injuries had been inflicted by V.

After her return to Sumy, the child continued to live with the applicant and his parents. V. was given access to the child only in the presence of the applicant or other persons that he trusted.

On 9 December 2011 the Zarichnyy district police of Sumy refused to open a criminal investigation in respect of the alleged abduction of the child, stating that the facts of the case did not indicate that the crime of child abduction had been committed. It was noted that the couple had not divorced and it had yet to be determined by the court with whom the child should reside.

On 13 December 2011 the Trostyanetskyy district police of the Sumy Region refused to open a criminal investigation in connection with the child’s injuries, as determined on 1 December 2011, for lack of corpus delicti. According to the police decision, the seriousness of the injuries had not been established; however, if the injuries had been minor, the applicant was free to institute a private prosecution against the person concerned.

On 28 March and 9 April 2012 the applicant’s mother requested the law-enforcement authorities to institute criminal proceedings against V. and F. under Article 156 § 2 of the Criminal Code. She considered that the child could have been a victim of sexual abuse in the period during which the latter had been living together with V. and F. in the village of Bezdryk. The applicant’s mother submitted that the child had told her personal stories which suggested that V. and F. might have engaged in sexual activities in view of the child and that F. had shown his genitals to the child.

On 9 April 2012, in the course of a pre-investigation inquiry, the applicant’s daughter was interviewed in the presence of the applicant’s mother. The child explained that during her stay with the mother in the village of Bezdryk she had regularly observed V. and F. naked, embracing and kissing each other and engaging in some “backwards and forwards movements” which she had not been able to understand; F. had taught the child how to kiss in an adult fashion, uncovered his genitals in front of her and asked her to touch his genitals.

On 14 April, 16 May and 31 October 2012 the Sumy district police, having conducted the pre-investigation inquiries, refused to open criminal proceedings for lack of corpus delicti. Those decisions were quashed as unsubstantiated by the supervising prosecutors, who ordered further measures, such as establishing the whereabouts of F. (who had not been interviewed), identifying and interviewing possible witnesses, inspecting the premises and the yard where the alleged crime could have been committed, and undertaking medical and psychological examinations of the child.

On 8 November 2012 the Sumy district police once again refused to open criminal proceedings against V. and F. on the grounds that there had been no corpus delicti. In their decision the police referred to the interviews with the applicant’s child, V., and other people. V. denied the allegations. F. could not be interviewed as he had moved abroad. In sum, the Sumy district police concluded that the available material had been insufficient to suggest that any crime had been committed.

On 8 May 2013 the applicant, relying on the new Code of Criminal Procedure of 2012, requested that an investigation be opened against V. and F. in respect of the alleged child sexual abuse. On the same day the Sumy district police opened a criminal investigation under Article 156 § 2 of the Criminal Code. The applicant was admitted to the proceedings as the representative of his daughter.

The investigator ordered that measures be undertaken to establish the whereabouts of F. During the investigation V. denied the allegations and submitted that she had been a victim of domestic violence, that she had been threatened and beaten by the applicant, and that this had prompted her to run away with the child on 20 September 2011; she also submitted that she had moved to the village of Bezdryk, where her grandfather lived, and that she had had no sexual relations with F., her uncle. When questioned, the applicant and his mother insisted on the truth of their previous statements. They underwent polygraph examinations which suggested that they had told the truth in their submissions.

On 3 October 2013 the applicant’s daughter was questioned in the presence of a psychologist and her grandmother (the applicant’s mother). The applicant’s daughter submitted in particular that F. had taken her hand and placed it on his genitals; that F. had taught her to kiss in an adult fashion; and that F. and V. had engaged in certain activities which she had not been able to understand and which she had earlier described to the applicant and the grandmother.

On 21 November 2013 a panel of experts carried out a forensic psychiatric examination of the applicant’s daughter. In the course of the examination, the child stated that F. had been touching her genitals and she, in compliance with his commands, had had to touch F.’s genitals. F. taught her to kiss in an adult fashion. The child stated that she had seen V. and F. naked and kissing each other; she then described the movements that she had observed V. and F. engaging in while in bed.

The experts found that the child had not been suffering from any mental illness at the time of the events or at the time of the examination; that she had not shown any tendency to fantasise; and that she was able to remember the circumstances of the events at issue and to give truthful statements in that regard. However, she could not understand the meaning of the actions that she had observed or in which she had participated. The experts concluded that the child could take part in the investigative measures.

On 9 April 2014 the deputy head of the investigation division of the Sumy regional police department ordered the investigator in charge of the case to immediately speed up the investigation, which, in his opinion, was being conducted too slowly. He requested the investigator to undertake a number of investigative measures.

On 28 April and 29 September 2014 the Sumy district police closed the criminal proceedings for lack of corpus delicti in the actions of V. and F. Having assessed the available material, the investigator found that there had been insufficient evidence submitted to enable the bringing of charges of sexual abuse. In the last decision the investigator also referred to the statements by F. who was questioned on 20 September 2014 and who denied all the allegations, arguing that they were totally false.

These two decisions were reversed as unsubstantiated by the supervising prosecutors, who ordered further investigation.

On 27 December 2014 the Sumy district police decided once again to close the criminal proceedings. In examining the statements of the applicant’s daughter, the investigator considered that these statements could not convincingly prove the alleged events since the child had made those statements belatedly; furthermore, the child had only been three years old at the time of the events in question. The investigator furthermore noted that these statements did not suggest anything in respect of mens rea, in particular whether there was any sexual intent in V.’s and F.’s alleged actions in relation to the child, or whether they had been aware of the fact that the child had been observing them during the alleged instances of sexual intercourse.

The investigator then referred to the statements of the applicant and his mother, as well as of the mothers of two girls with whom the child had used to play. The latter two women stated in particular that the applicant’s daughter had told them stories which had suggested that she had been subjected to sexual abuse while she had been living with V. and F. The investigator noted that those individuals had not directly observed the alleged instances of sexual abuse and that they had simply repeated statements made by the child. The investigator then stated that V. and F. denied the allegations of child sexual abuse. Other people, such as the child’s teacher at the child-minding centre and village inhabitants, had not provided any more precise information. Overall, the investigator concluded that the available material had been insufficient for him to conclude that V. and F. had committed the alleged crime.

On 6 March 2015 the Sumy district prosecutor’s office reversed the decision of 27 December 2014 as unsubstantiated. The supervising prosecutor found that the previous instructions given by the prosecutor’s office had not been followed and that it was necessary to take further investigative measures.

As of 20 January 2016, the investigation was ongoing.

On 20 June 2012 the Zarichnyy District Court of Sumy dissolved the marriage between the applicant and V. and ruled that the child should live with V. The court ordered the applicant to hand over the child to V. and to pay her a monthly amount for the support of their daughter.

In determining the place of the child’s residence, the court first established that until 20 September 2011 the child had lived with both parents and her paternal grandparents in the applicant’s flat and that all of them had participated in the upbringing of the child; the paternal grandparents had taken care of the child when both parents had been abroad for six months in 2009; when V. had been abroad for six months over 2010 and 2011 she had transferred money earned by her to the applicant to cover the needs of the family. On 25 October 2010 the child had been admitted to the child-minding centre in Sumy; the child had been accompanied to and from the centre by the applicant.

The court also established that on 20 September 2011 V. had taken the child and moved from the flat because of conflict between her and the applicant. On 25 October 2011 the child had been admitted to the childminding centre in the village of Bezdryk. The child had been accompanied to and from the centre by her mother. On 1 December 2011 the child had been taken from the centre by her father. Since that time the child had been living again in the applicant’s flat in Sumy.

In comparing the applicant’s flat and the flat where V. was then living, the court found that both flats were located in Sumy and offered appropriate conditions for the residence of the child. In that regard the court referred to the report of the local guardianship office, which stated that both parents provided adequate residential conditions for the child. As to the income of the parents, the father was employed and received a salary; the mother was a student but worked unofficially and had been abroad to earn money. Both parents had positive reference letters and the child had an equal attitude towards both of them.

The court dismissed as unsubstantiated the applicant’s allegation that the mother was negligent with the child and that she might have exercised physical violence against the child: in contrast to the results of the medical examination of 2 December 2011 documenting the injuries on the child’s body (see paragraph 15 above), the staff of the Bezdryk child-minding centre had signed a certificate stating that on 1 December 2011 the child had had no injuries; furthermore, the police had refused to institute criminal investigation in respect of the child’s injuries (see paragraph 19 above). The court concluded that there was no link between V.’s attitude towards the child and the latter’s injuries.

Relying on the United Nations Declaration of the Rights of the Child of 1959 the United Nations Convention on the Rights of the Child and Article 161 of the Family Code, the court found that the facts did not disclose any exceptional circumstances which could justify the separation of the child from her mother. Consequently, it determined that the child should reside with her mother.

The applicant appealed against that decision, arguing that the firstinstance court had breached substantive and procedural provisions of domestic legislation and international law. He submitted that in determining the place of the child’s residence the court should have been guided by the principle of the best interests of the child. The applicant insisted that on 20 September 2011 V. had secretly moved with the child from the flat and destroyed the stability of the child’s everyday life. The court had failed to properly examine the allegations that V. had behaved violently towards the child and the possibility that the child had been the target of sexual abuse during the period when she had lived apart from her father with her mother. The applicant emphasised that on 1 December 2011 he had lawfully taken the child back to his flat since the child had previously been permanently living in his flat and he had never given any consent for V. to change the child’s place of residence. In his opinion, the court had paid no attention to the fact that the child had been attached to the paternal grandparents and that her separation from them would be detrimental to her interests. Furthermore, the respective financial capacity of the applicant and V., as well as the residential conditions, had not been properly assessed. Important pieces of evidence had not been included in the case file and part of the evidence had been assessed wrongly – namely, the certificate issued by the Bezdryk child-minding centre regarding the child’s good state of health was a fabricated document that had been discredited by the forensic medical expert report of 2 December 2011.

On 9 August 2012 the Sumy Regional Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. The Court of Appeal found that the allegations of child abduction, sexual abuse and physical violence had been groundless. As to the child’s attachment to the paternal grandparents, the Court of Appeal considered that the parents played a more important role in the upbringing of the child. Overall, the findings of the first-instance court had been lawful and reasonable.

On 14 September 2012 the Higher Specialised Court for Civil and Criminal Matters dismissed a cassation appeal lodged by the applicant as unfounded.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1942 and lives in Lamlash.

In 1966 the applicant founded a business which was later incorporated as Arakin Limited (“Arakin”).

In the second half of the 1980s, Arakin became involved in commercial disputes. In 1986 Tods Murray solicitors were retained in relation to those disputes. However, Tods Murray’s fees were not settled in full by Arakin.

On 27 May 1996 Tods Murray commenced legal proceedings against Arakin in the Outer House of the Court of Session (the first-instance civil court in Scotland in respect of claims over a certain value) for payment of 32,696.75 pounds sterling (“GBP”) in respect of fees relating to a dispute against Arakin’s former accountants.

On 30 January 1998 Arakin issued a counterclaim alleging professional misconduct and negligence. It sought GBP one million.

The dispute gave rise to four sets of overlapping proceedings. First, the proceedings to establish Tods Murray’s fees, which ran from 8 October 1996 to 2 October 2008 (in this the courts were assisted by the auditor for taxation, an expert officer of the Outer House who advises the court on disputes concerning legal fees); second, proceedings in respect of Arakin’s allegations of fraud against Tods Murray running from July 2001 to 22 January 2004; third, proceedings concerning the principal claim and counterclaim which ran from 9 January 2009 to 14 November 2012; and fourth, proceedings settling the overall costs of the case (excluding the fraud proceedings) which ran from 14 November 2012 to 13 November 2014.

On 8 October 1996, the Outer House ordered a detailed account of the fees owed to be produced to the auditor for taxation, in order for the amount of the fees due in respect of the litigation in question to be determined.

By March 1997 all accounts had been lodged with the auditor. On 4 August 1997 the taxation hearing began before the auditor. It lasted four weeks. On 27 March 1998 the auditor issued his reports.

The parties objected and from April 1998 the Outer House which was responsible for overseeing the taxation proceedings, held a number of hearings to settle the procedure and deal with the notes on objections, and also to hold a preliminary debate in the claim and counterclaim (the third proceedings). Some hearings were discharged at Arakin’s request. The court however refused Arakin’s request to stay the case.

The auditor issued his report on 26 October 1999.

By 14 October 1999 Arakin’s then solicitors had ceased acting for it. In February 2000 Arakin’s new solicitors withdrew from acting. From that time onwards Arakin had no legal representation. The applicant sought to appear at hearings in early 2000, on Arakin’s behalf.

The applicant subsequently applied for summary decree in the counterclaim and dismissal of the principal action. This was dismissed as incompetent on 22 June 2001.

Between June 2001 and April 2002, the Outer House sought to regulate the procedure in relation to the notes of objection lodged by both parties in respect of the accounts and dealt with other motions lodged by the applicant. It held a number of hearings.

However, no further progress could be made on the notes of objections until the allegations of fraud had been determined (the “second proceedings”; see paragraphs 23-28 below). In the course of 2002 and 2003, the court heard various incidental motions by the applicant who increased the sum sought in the counterclaim to GBP forty-five million. He also renewed motions which had previously been refused.

The allegations of fraud made by the applicant having been determined, the Outer House on 24 March 2004 ordered a two-day hearing on the notes of objections for 7 June 2004, which finally concluded on 12 November. In total, around fifty objections had been made, of which, seven were lodged by Tods Murray and the remainder by the applicant.

On 28 April 2006 the Outer House gave a judgment on the notes of objections, running to 223 paragraphs. Tods Murray appealed. On 14 July 2006 the Inner House ordered that there should be a hearing on 21 March 2007. Following that hearing, the Inner House found in favour of Tods Murray on all three points raised in the appeal. On 27 April 2007 the case was remitted to the Outer House.

On 9 May 2007, the Outer House ordered the parties to lodge their proposals for further procedure.

The accounts were returned to the auditor to consider the impact of the notes of objection which had been upheld. On 21 January 2008 a taxation hearing was held before the auditor and on 2 June 2008 he reported on his taxation of the remitted accounts. He assessed the total amount due in legal fees as GBP 409,597.50. Tods Murray accepted that Arakin had paid GBP 321,766.39 to date and the sum sued for was therefore the balance of GBP 87,831.11.

On 24 September 2008 a final hearing took place on the notes of objections. On 2 October 2008 the Outer House delivered its judgment, finally determining all questions relating to the valuation of the accounts. The taxation proceeding were therefore at an end.

In the meantime in July 2001, the applicant made allegations about the authenticity of the court papers, which developed into allegations of fraud against Tods Murray and their solicitors. Hearings took place before the Outer House between August and December 2001. On 20 December 2001 the Outer House ordered the applicant to lodge, by 11 January 2002, particulars of his allegations. On 18 January 2002 it directed that the case be heard on 13 February 2002. On that date, having regard to further allegations made by the applicant, it ordered that he lodge details of these allegations within fourteen days. On 6 March 2002, a factual hearing on the allegations was fixed for 14 May 2002. This hearing lasted 15 days but was ultimately insufficient.

From May 2002 the court repeatedly attempted to fix hearing dates that the applicant did not accept; the case was finally heard in August 2003.

On 31 October 2003 the court issued an opinion rejecting the applicant’s allegations in their entirety. It concluded, inter alia, that none of the allegations were well-founded; that the applicant had made representations which he knew or ought to have known were incorrect; that the hearing had taken an inordinate length of time because the applicant had persistently resorted to irrelevant lines of inquiry and had been disorganised in his presentation; that the hearing had been used as a vehicle to air grievances going beyond its scope and to advance the applicant’s interests in other litigation; that the applicant’s approach had been reckless; and that he had had no reasonable grounds for his asserted belief in the truth of the allegations.

The applicant sought leave to appeal the decision to the Inner House of the Court of Session. On 21 April 2004 the Inner House dismissed the application to appeal as incompetent since leave had not been obtained from the Outer House.

In the meantime, on 22 January 2004, the Outer House awarded costs against the applicant at a punitive rate in light of his conduct. The court also ordered that their payment was a condition to proceed with the counterclaim. Between 2004 and 2009 the amounts remained unpaid and the matter proceeded on the basis that the only issues to try were contained in the principal claim.

In early August 2009, the applicant paid the amounts to which the order of 22 January 2004 referred.

Following the conclusion of the taxation proceedings, the Outer House heard the parties on several occasions between 9 January 2009 and 22 October 2009 to determine future procedure and finally listed an eightday hearing of legal issues to commence on 1 December 2009. By the time of the hearing the applicant sought over GBP sixty-two million in his counterclaim. On 10 December 2009, after an eight-day hearing, the court reserved judgment.

On 9 July 2010 the Outer House delivered its opinion. It noted that Tods Murray’s claim was a simple one, namely an action for payment of a debt. The applicant’s position, it said, was “a great deal more complicated”. Despite lengthy written pleadings, the court had found it “difficult to determine the precise factual background” upon which he relied. Turning first to his defences to the principal claim, the court rejected all except one, namely the applicant’s argument that he had paid the fees due in full. This, the court said, was a matter for evidence appropriate for the subsequent factual hearing.

As to the counterclaim, after a careful examination of the applicant’s evidence, the court held that it was an “abuse of process”. It noted that very grave allegations had been made but that the applicant had produced no expert opinion to support them.

The applicant appealed against the decision. Between 20 October 2010 and 28 January 2011 the Inner House dealt with various procedural aspects of the appeal. On 3 March 2011 the Inner House heard the appeal and refused it. The case was remitted to the Outer House.

On 11 May 2011 the Outer House heard both parties and fixed a hearing on the facts. On 21 July 2011 that hearing took place. A day was set aside for further argument and the parties lodged detailed notes of arguments, the applicant’s running to one hundred pages.

On 14 February 2012 the court handed down its judgment. It noted that Tods Murray’s case was “straightforward and cogent” but that it had been “very difficult to discern the defence to the action”. The applicant had repeated “scurrilous allegations” against partners in Tods Murray and the witnesses he had led had been of no assistance in determining the question before the court. The court also commented that the applicant had sought to revisit many points which had already been decided. It found in favour of Tods Murray in the principal claim and held that the applicant was liable in the sum of GBP 86,376.40.

The applicant appealed. On 6 March 2012 the Inner House found the appeal suitable for urgent disposal. A hearing took place on 4 and 5 July. In a judgment of 14 November 2012 the Inner House upheld the decision of the Outer House. It commented that it “had not found it easy to understand the arguments which [the applicant] sought to advance”. It further noted:

“Throughout the course of this protracted litigation Mr McNamara has sought to revisit arguments and allegations which have not found favour with the court on previous occasions ...

Many of the issues which Mr McNamara has sought to argue before us cannot be argued competently before us now.”

It held that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation in the context of interim appeals. This brought to an end the substantive issues in the litigation.

The only remaining issue was costs. Tods Murray applied for its costs and the applicant lodged various applications. The Outer House listed a hearing to take place on 1 July 2013. However, the applicant contacted the court stating he was unwell, so it was adjourned to 22 July. He then told the court he was on holiday on 22 July. The court found this an inadequate reason for non-attendance and maintained the date.

The applicant did not appear at the hearing on 22 July 2013. The Outer House granted a further one-week adjournment in order to allow the applicant a “final opportunity to appear”. The clerk of court and Tods Murray’s solicitors sought to bring the hearing, which had been re-listed for 29 July 2013, to the applicant’s attention by e-mail, telephone and by personal attendance at the applicant’s home address.

On 29 July 2013 the applicant did not appear and the hearing proceeded in his absence. The judge found in favour of Tods Murray on the issue of expenses at an enhanced, punitive rate of expenses in light of the applicant’s conduct. The court commented:

“When this action was first raised in 1996, it appeared to be in short compass. The pursuer sought payment from the defender of its outstanding professional fees. It was therefore a simple action for recovery of a debt. Since then, Mr McNamara has introduced a great many factual and legal issues, which have been exhaustively examined over many hearings.”

In relation to the applicant’s conduct he found that it had been:

“ ...unreasonable and incompetent. He has thereby caused the pursuer unnecessary expense...”

It also awarded an additional fee to Tods Murray to reflect the “huge amount” of correspondence and documents sent to the Tods Murray’s solicitors by the applicant, much of which was irrelevant, the complexity of the proceedings, having regard to the “number, difficulty and novelty of the questions raised”, the skill time, labour and specialist knowledge required of the solicitors and the accusations of deception, incompetence and bad faith levelled against individual solicitors at Tods Murray. It rejected a number of motions lodged by the applicant.

The applicant appealed and lodged a number of documents. The appeal was refused on 16 July 2014. On 13 November 2014 the applicant was found “liable in the expenses” (that is, liable for the costs) of that appeal. His various motions were dismissed. The Inner House again noted that the applicant had sought to reopen issues already determined and continued to express his dissatisfaction with the court’s substantive decisions.

Meanwhile, in 2009 the Lord Advocate (the chief legal officer of the Scottish Government) applied to have the applicant declared a vexatious litigant. He relied on four sets of proceedings, including the Tods Murray litigation.

On 4 June 2009 the Inner House declared the applicant a vexatious litigant but excluded the Tods Murray litigation from the order. It referred to the applicant’s ill-founded allegations about lack of authenticity of documents which it said were a “serious abuse of process”. In coming to this conclusion it also took into account the finding that he had used a proof in the Tods Murray litigation for collateral purposes. Moreover, he had wasted time because of his disorganisation and persistent pursuit of irrelevant matters in that litigation. It noted that the applicant had accepted that his lack of legal expertise had caused delay in the proceedings.


The applicant, Mr Petro Yakovych Petlyovanyy, is a Ukrainian national who was born in 1960 and lives in Kolodribka. He was represented before the Court by Ms I. Petrunko, a lawyer practising in Chernivtsi.

The Ukrainian Government (“the Government”) were represented by their then acting Agent, Mr M. Bem, from the Ministry of Justice.

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

In December 2006 the applicant made a deposit with a private entity, the Sidney Plus Credit Union (“the Credit Union”), and was subsequently unable to receive his money back.

On 20 April 2007 criminal proceedings were instituted against officials of the above entity for financial fraud and the applicant was recognised in June 2007 as an aggrieved party in those proceedings, being entitled to claim an amount of UAH 55,476.99 (equivalent to EUR 9,124.60).

On 5 May 2008 the Ternopil Regional Commercial Court declared the Credit Union bankrupt.

The founder of the Credit Union, Ms L., was placed on the list of wanted persons.

In February 2008 the applicant lodged a claim with the Zalishchytskyy District Court against the Ministry of Finance and the State Treasury, seeking to recover the losses sustained as a result of the crime under Article 1177 of the Civil Code.

By decision of 25 March 2008 the court rejected the applicant’s claim on the ground that a special law laying down the conditions and mechanism for enforcing the provisions of Article 1177 of the Civil Code had not yet been enacted. Furthermore, the court noted that the identity of the person who caused the damage to the applicant had been established but that her whereabouts were unknown, and that the insolvency of the accused person had not been established.

On 22 May and 23 July 2008 respectively the Ternopil Regional Court of Appeal and the Supreme Court upheld the decision of the first-instance court.

The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Article 1177, relied on by the applicant in the domestic proceedings, and Article 1207, provide for the State to compensate the victims of a crime if the offender is not identified or is insolvent. Article 1177 provides as follows:

“1. Pecuniary damage caused to the property of a natural person as the result of a crime shall be compensated for by the State if the person who committed the crime is not identified or is insolvent.

The conditions and procedure governing compensation for pecuniary damage caused to the property of a natural person who was the victim of a crime shall be established by law.”


CASE OF ZIAUNYS v. THE REPUBLIC OF MOLDOVA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1965 and lives in Vilnius.

The applicant is a member of the International Banknote Society, the American Numismatic Association and the Collectors’ Club of Vilnius.

On 12 December 2000 the applicant signed a contract with the Educational Coin Company (“the company”), registered in the United States of America (“the USA”), according to which he would deliver to the company 8,500 kg of banknotes (in five and ten rouble notes) issued by the self-proclaimed Bank of the “Moldavian Republic of Transdniestria (MRT)” (see further details about the events leading to the creation of the self-proclaimed “MRT” in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004VII). In exchange, under the contract, he had the right to select items from the company’s wholesale catalogue to a value of 7,000 United States dollars (USD).

On 26 January 2001 the applicant bought from the “MRT” bank 13,590,000 “MRT” roubles (in five and ten rouble banknotes) issued in 1994. The banknotes issued in 1994 were no longer in circulation in the “MRT”, having been replaced by new banknotes in 2000. Such banknotes have never been in official circulation in Moldova and had been accepted as payment only in the “MRT” and only prior to 2000.

On 1 February 2001 the applicant submitted to Moldovan customs 353 sealed bags of banknotes issued by the “MRT” bank in 1994. He asked for permission to ship the items to the USA, in accordance with the contract with the company. He declared that the paper in the bags had a numismatic value of USD 7,000.

The customs authority decided to store the bags in its warehouse until a decision could be taken about what to do with them. Subsequently, the bags were moved to the premises of the State Tax Inspectorate (“the STI”), where they have remained since.

By a decision of 23 July 2003 and further to a report of 25 August 2003, the Customs Department decided not to return the banknotes to the applicant and to transfer them instead to the STI for free as the items were banned from general circulation in Moldova.

The applicant asked on a number of occasions for the return of the items confiscated from him. On an unknown date in 2005 he initiated court proceedings to have the decisions taken in July and August 2003 set aside and the items returned to him.

On 19 April 2005 the Chişinău Court of Appeal dismissed his court action as lodged out of time. On 3 August 2005 the Supreme Court of Justice quashed that decision and ordered a rehearing of the case by the lower court.

On 7 November 2005 the Chişinău Court of Appeal allowed the applicant’s claims in part. The court found that the banknotes under examination had never been introduced into general circulation in Moldova and had never been exchanged for the official currency of the country. There was no evidence in the file that the banknotes had been manufactured for circulation in Moldova. The applicant had officially declared the 353 bags of banknotes, which he considered to be waste paper with numismatic value, in order to transport them abroad. Moreover, it had to be presumed that he had obtained the items in a lawful manner, unless proof to the contrary had been adduced. However, nobody had claimed a property right in respect of the relevant items. The court concluded that the Customs Department and the STI had acted unlawfully.

On 17 May 2006 the Supreme Court of Justice quashed the lower court’s judgment and delivered a new one, rejecting all his claims. The court found that, in accordance with Articles 1 and 2 of the Money Act (see paragraph 19 below), only the National Bank of Moldova had the right to issue banknotes, and that the “MRT” bank had not been given such a right. As a result, the banknotes issued by the “MRT” bank could not be introduced into legal circulation and could not, under Article 206 of the Civil Code (see paragraph 18 below), be the lawful object of the contract of 26 January 2001. That judgment was final.