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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Georges Ravarani

The applicant company is a legal entity registered in Vilnius.

In 1994 the Government adopted a resolution establishing the Development Plan for the Curonian Spit National Park (hereafter “the development plan”). The main objectives of the development plan were published in the Official Gazette (Valstybės žinios) (see paragraph 53 below). The development plan explicitly indicated that the buildings with a former military objective, situated in the adjacent dunes, had to be removed (nukeliami) and the natural environment fully restored.

In 1998 the Government decided to privatise the former Soviet (later the – Russian Federation) military buildings, without the land, in Juodkrantė, the Neringa Municipality, within the Curonian Spit National Park. There were two military barracks, a canteen, a store house and two sheds.

In 1999 the State Property Fund carried out a public auction, at which the applicant company was the only participant and purchased the buildings for 226,000 Lithuanian litai (LTL, approximately 65,454 euros (EUR)). The purchase agreement, which was concluded in February 2000, indicated that the applicant company had to lease the land assigned to the buildings (įsipareigoja išsinuomoti šiam objektui priskirtą žemės sklypą).

In September 2001 the Neringa Municipality decided to prepare a detailed plan of the area where the buildings were sited. The purpose of the plan was to designate a plot of land near the existing buildings, providing an opportunity to renovate the buildings or to build new recreational buildings.

In August 2002 the authorities in charge of the Curonian Spit National Park decided that renovation of the buildings had to meet the requirements applicable to the whole area. The buildings had to be integrated in the landscape; as they were sited in the forest, the purpose of the use of the land had to be changed.

In September 2002 the Klaipėda Region department of environmental protection decided that the purpose of the use of the land, on account of its specific location, could only be changed if the projects were approved by those managing protected areas or with the approval of the Ministry of Environment. In August 2003 the same department rejected a detailed plan submitted by the applicant company, seeking to amend the purpose of the land so that it became a recreational area.

The applicant company instituted court proceedings, urging the court to declare unlawful the authorities’ rejection of the detailed plan proposed by the applicant company (see paragraph 11 above) and to oblige them to accept it.

The applicant company’s claim was dismissed on 23 October 2003 by the Klaipėda Regional Administrative Court and on 27 January 2004 by the Supreme Administrative Court. The courts held that in accordance with domestic law there was no possibility to build new recreational buildings in the Curonian Spit National Park (see paragraph 53 below). The courts thus held that the applicant company’s detailed plan was contrary to the development plan.

In January 2004 the applicant company asked the authorities to conclude a lease agreement in respect of the land assigned to the buildings. The authorities replied that the applicant company had to provide a plan of the land. However, as there was no detailed plan of the area, the land could not be leased. The applicant company was also obliged to pay the land tax.

The applicant company instituted court proceedings and complained that it had to pay the land tax but the Vilnius Regional Administrative Court on 30 April 2004 and the Supreme Administrative Court on 17 September 2004 held that it had to pay the land tax because it had been using the land in question.

In February 2006 the applicant company asked the authorities to include the land in question in the landscape management recreational zone. In March, the Protected Areas Service replied that the development plan of 1994 indicated that the buildings had to be demolished. It said that it would formulate provisions in the explanatory report regarding the possibility to compensate the applicant company for the buildings. In this case, the applicant company would be able to acquire other buildings owned by the authorities.

In November 2011 the applicant company proposed that the land under its buildings be included in the recreational zone and that a compensation mechanism be determined for the buildings if the area had to be redeveloped. In December 2011 the authorities replied that the redevelopment of the area had been determined in 1994 and that they could not agree with the applicant company’s proposals. The authorities indicated that any decision regarding the applicant company’s buildings had to be taken by the Government.

In January 2012 the applicant company complained about the refusal of its proposal (see paragraph 17 above) to the State Territorial Planning and Construction Inspectorate. It claimed that it had legitimate expectations that it would be able to use its possessions in an appropriate manner, namely that it would be allowed to reconstruct the buildings without increasing their height. In February 2012 the Inspectorate replied that when approving the Curonian Spit National Park Management Plan (hereafter “the Management Plan”), a decision on a compensation mechanism and time-limits would also have to be taken.

In April 2012 the applicant company examined a draft of the Management Plan and found that its buildings were indicated as objects to be redeveloped (rekultivuojami objektai) but that that decision had not been explained. The applicant company asked the authorities to amend the draft so that it included the issue of compensation for the buildings or included the buildings in the landscape management recreational zone.

In May 2012 the Ministry of Environment and the Protected Areas Service replied that they had set up a working group to determine a compensation mechanism for the property that had to be expropriated.

In May 2012 the applicant company asked the authorities to inform it about the conclusions of the working group. In June 2012 the authorities replied that the working group had to be set up before 29 June 2012.

The working group was set on 20 July 2012 and had to provide its proposals before 19 November 2012.

In February 2010 the applicant company asked the authorities for planning permission to carry out major renovation work on one of the buildings, namely the canteen. The authorities replied that they could not issue planning permission and that the applicant company had to provide them with the lease agreement in respect of the land assigned to the buildings. Only after such agreement was provided, the authorities would examine the applicant company’s request.

The applicant company lodged a complaint with the domestic courts against the authorities’ refusal to issue planning permission for renovation of the canteen. On 30 August 2010 the Klaipėda Regional Administrative Court allowed the claim, holding that the applicant company had been paying the land tax, which was evidence that it had been using the plot of land.

On 9 May 2011 the Supreme Administrative Court allowed an appeal lodged by the authorities. It held that the applicant company had not provided any information proving that it was the owner of the plot of land, so the authorities had not been obliged to issue planning permission for renovation of the canteen. The applicant company applied for the reopening of the proceedings. Its request was refused by the Supreme Administrative Court in January 2012.

On 6 June 2012 the Government approved the Management Plan by Resolution No. 702 (see paragraph 54 below) and asked the Ministry of Environment to set up a working group to assess the legal grounds for expropriating property for public needs (dėl darbo grupės teisinėms prielaidoms paimti turtą visuomenės poreikiams sudarymo). The working group was set up on 20 July 2012 and its proposals were to be submitted by 19 November 2012. The Management Plan included the reserve land in Juodkrantė, indicating that its purpose was to compensate for the possible losses incurred by lawful owners of buildings that had been earmarked for demolition.

On 4 July 2012 the applicant company lodged a complaint with the Vilnius Regional Administrative Court, urging it to revoke the part of the Government Resolution where it had been decided that the buildings at 21 Miško street (the location of the applicant company’s buildings) would be demolished and to order the authorities to amend the Management Plan. The applicant company argued that the issue of compensation and the time-limits for the demolition of property had not even been mentioned in the Management Plan. It also argued that clear indications on compensation for the buildings and for the land tax were needed.

On 23 July 2012 the Vilnius Regional Administrative Court refused to examine the claim. The reasons were provided in two short paragraphs, which mainly reiterated the provisions of domestic law (see paragraph 62 below). The applicant company had complained about the lawfulness of the Government Resolution. The court considered that issues as to whether acts adopted by the Government were in accordance with the Constitution or laws fell within the jurisdiction of the Constitutional Court. It stated that it was not within the area of competence of the administrative courts to examine the lawfulness of the activities of, inter alia, the Government (as a collegial institution). As regards an amendment to the Management Plan, the court stated that that was linked to the first part of the claim and thus would not have any legal consequences on the applicant company.

In August 2012 the applicant company lodged a separate complaint and asked the Supreme Administrative Court to examine the case on the merits. It claimed that the first-instance court had misinterpreted the provisions of the Law on Administrative Proceedings, and thus limited the applicant company’s right of access to a court. The applicant company thought that when the Government had approved the Management Plan, it had been implementing the function of public administration, and that that document had had a direct influence on the applicant company’s rights and obligations, and was thus an individual legal act that had to be examined before the administrative courts. On 28 November 2012 the Supreme Administrative Court upheld the decision of the Vilnius Regional Administrative Court of 23 July 2012. It held that the applicant company had questioned the lawfulness of both the Management Plan and the development plan. The Supreme Administrative Court held that when the Government had approved the Management Plan, it had been carrying out the function of State power. Moreover, the court had already ruled on the issue of the attribution of the Management Plan to the jurisdiction of the administrative courts and had decided that it had not been attributable to those courts (see paragraph 79 below). The court indicated that a legal act could consist of textual and graphic information (tables, drawings, schemes, plans, symbols, emblems). The Constitutional Court had already held that all parts of a legal act were interrelated and were of equal legal effect (see paragraph 77 below). The court further held that the present case was in substance identical to cases already examined by it, and that there were no grounds to reach a different conclusion on the nature of the Management Plan. The court explained that the applicant company could only raise the issue of the lawfulness of the Government Resolution in the context of an individual case regarding violation of its specific rights (by complaining against an individual legal act, by which the Government Resolution and the decisions of the Management Plan would be implemented). It could then ask the court examining that case to refer the issue to the Constitutional Court. The applicant company’s request to organise the procedure to amend the Management Plan so that it included the land in question in the landscape management recreational zone was dismissed because the applicant company had failed to address the authorities or the courts after the approval of the Management Plan.

The applicant company then applied for the reopening of the proceedings. On 3 April 2013 the Supreme Administrative Court rejected its application on the grounds that the applicant company’s claims had been dismissed for being outside the administrative court’s jurisdiction and the proceedings could only be reopened if an administrative case had been examined on the merits.

In October 2011 the applicant company asked the authorities which documents were necessary for the proposed renovation work. In November 2011 the authorities replied that it was not clear from the applicant company’s request which building (“specific, not complex or nonspecific” (ypatingas, nesudėtingas ar neypatingas), as defined in the domestic law) it was aiming to renovate. The applicant company had indicated major repair work. The authorities stated that a detailed plan was not necessary, the location of the building to be renovated was not important and a document proving ownership of the land (see paragraph 25 above) was not necessary either.

In May 2013 the Neringa Municipality inspected the applicant company’s buildings and held that they were in a state of disrepair. It requested that the applicant company appoint a person responsible for the maintenance of the buildings before 3 June 2013, remove the damaged parts of the buildings before 1 July 2013 and renovate the buildings before 31 May 2014.

On 30 December 2013 the applicant company asked the authority in charge of the Curonian Spit National Park to issue planning permission to carry out major repair work in order to renovate the buildings. The same month the applicant company received a response that permission could not be issued because it would be contrary to the Management Plan of 6 June 2012 (see paragraph 26 above).

The applicant company instituted court proceedings before the Vilnius Regional Administrative Court against the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013 (see paragraph 33 above). It urged the court to order the authority to issue the planning permission required for it to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage for the land tax and property tax it had paid between 2000 and 2014.

In the course of proceedings the applicant company submitted a draft friendly settlement agreement to be concluded by the State, proposing that the State compensate it for the removal of the buildings by providing the applicant company with lease rights to State-owned land measuring 0.7685 hectares in Neringa with construction rights. The State representative refused to agree to the proposal because it was in breach of domestic law (see paragraph 63 below).

On 14 November 2016 the Vilnius Regional Administrative Court held that the refusal of the authority in charge of the Curonian Spit National Park to issue the planning permission required to carry out major repair work was in accordance with the relevant domestic law. The applicant company also asked the court to refer the question of whether the Management Plan was in accordance with the Constitution to the Constitutional Court. The court acknowledged that the authority’s decision had lacked a seal of approval but held that that shortcoming could not be regarded as grounds to overrule the decision. The court also held that the authority had not acted unlawfully, so there were no grounds for awarding the applicant company pecuniary damages. Moreover, domestic law did not require that the Management Plan contain a compensation mechanism for the buildings to be “removed”. However, the Management Plan in question indicated that an area in Juodkrantė had been designated to compensate for the losses incurred by the lawful owners of the buildings to be removed. Thus the Management Plan provided for the opportunity to compensate for possible losses. As regards the referral to the Constitutional Court, the court held that the applicant company had mistakenly stated that the decision to remove the buildings had only been indicated in the Management Plan. The court stated that it was a commonly known fact that the applicant company’s buildings had been earmarked for removal at the time the purchase agreement had been concluded, and the applicant company, as a diligent legal entity, should have assessed the legal status of the buildings and the restrictions on their use. The legitimate expectations of the applicant company had not been breached as it had not proved the need to refer the issue to the Constitutional Court. The court also pointed out that the buildings had not been taken from the applicant company for the needs of society (see paragraph 45 below). However, when using them the applicant company had to follow the legal regulations, which established that construction in the area in question was not allowed and that it was attempting to protect its rights in the wrong way. The decision that had had legal consequences for the applicant company had been the decision to privatise the buildings and to sell them to the applicant company.

In December 2016 the applicant company appealed and asked the Supreme Administrative Court to refer the matter to the Constitutional Court; to overrule the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013; to order the authority to issue the applicant company with the planning permission required to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage. The proceedings are still ongoing.

On 15 April 2015 the Government adopted Resolution No. 389 approving the start of the amendment of the Management Plan. One of the purposes set out in the resolution was to combine the interests of the State and municipalities with those of the relevant natural and legal persons.

In June 2016 the applicant company submitted its proposals, namely that the area in which its buildings were located be included in the landscape management zone and that the buildings there should not exceed one storey with an attic. If the proposal to redevelop the land were maintained, the applicant company wanted a clear decision on time-limits for redevelopment and a compensation mechanism.

On 20 June 2016 the Protected Areas Service indicated that the land on which the applicant company’s buildings were sited was not affected by the amendment of the Management Plan. It also indicated that the reply could be appealed against to the Supreme Administrative Disputes Commission (“the commission”) or to the Vilnius Regional Administrative Court in one month from its reception.

In July 2016 the applicant company lodged a complaint with the commission about the reply of the Protected Areas Service (see paragraph 40 above). The applicant company stated that it had paid EUR 41,887 in land tax and EUR 22,795 in property tax between 2000 and 2014. It also stated that although the Management Plan had entered into force in 2012, it had not been proven that removing the buildings was necessary in the interests of society. There had also been no indications about the exact time-limits and procedure for the removal of the buildings. The applicant company thus asked the commission to overrule the decision of the Protected Areas Service of 20 June 2016 and to order it to amend the Management Plan in accordance with the applicant company’s proposals.

In August 2016 the commission closed the case, stating that the issue was not within its competence. The applicant company appealed against that decision, claiming that it had been formal and lacked reasoning, and that the commission had ignored the fact that the Protected Areas Service’s reply of 20 June 2016 had indicated that it was amenable to appeal before the administrative courts or the commission (see paragraph 40 above).

On 15 December 2016 the Vilnius Regional Administrative Court dismissed the applicant company’s appeal. It held that the applicant company had been represented by professional lawyers and the mere fact that the Protected Areas Service had erroneously indicated that its decisions were amenable to appeal did not discharge the applicant company of the obligation to follow the appeal procedure as laid down in domestic law (see paragraph 50 below). The court held that the applicant company had to address the State Territorial Planning and Construction Inspectorate with its complaint.

In January 2017 the applicant company appealed before the Supreme Administrative Court. The proceedings are still ongoing.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1982 and lives in Koper.

After going missing on 4 November 2007, X was found dead near the local Komen-Branik road, close to the town of Komen, on the morning of 5 November 2007. He had been repeatedly stabbed and cut with a knife and then run over by a car. The police were called to the scene, as were the district state prosecutor and the duty investigating judge.

On examining the crime scene, X’s mobile telephone was found in his car. The incoming and outgoing calls and the text messages sent to and from X’s telephone number were checked by police officers at the scene. It appeared from the telephone records that on 4 November 2007 X had communicated only with a person using a certain telephone number, from which a message of an explicitly sexual nature had also been sent to X. After the telephone directory was checked it was established, presumably by the police, that the telephone in question belonged to a woman who happened to be the applicant’s grandmother, with whom, as established on the basis of the official records, the applicant lived. Furthermore, having been informed that X’s mobile telephone had been found, the district state prosecutor requested the duty investigating judge to order the S company – the mobile network operator in question – to produce records of telephone calls made and text messages sent from the telephone.

On the same day (5 November 2007) the investigating judge of the Koper District Court issued an order for a search of X’s home and ordered the S company to provide data concerning communication undertaken via X’s mobile telephone. The S company on the same day submitted to the Koper District Court a disk containing X’s telephone records.

On the morning of 6 November 2007 the police stopped the applicant’s car and subjected him to a so-called “security check” (varnostni pregled), finding a knife (allegedly bearing traces of what could be blood) and a mobile telephone in the applicant’s pocket. After examining his telephone they established that he had used the aforementioned telephone number from which the aforementioned calls had been made and the aforementioned message sent to X. They seized these objects and arrested the applicant.

On the same day (6 November 2007), relying mostly on information found in X’s and the applicant’s telephones pointing to a link between X and the applicant, the investigating judge issued a search order in respect of the applicant’s home and the cars he was using. The state prosecutor furthermore requested that a court order for the obtaining of the applicant’s comprehensive telephone records be issued.

On 7 November 2007 the investigating judge issued an order that the M company – a mobile network operator – provide data concerning the applicant’s mobile telephone record. The M company provided a disk containing the requested data on the same day.

In the course of the preliminary inquiry, the investigating judge ordered a post-mortem examination of X, a DNA analysis and a comparison of biological traces found on the applicant’s clothes and other objects seized during the home search with those found on X’s body. She also ordered a medical examination of the applicant with a view to establishing any injuries.

The applicant, represented by counsel, was heard on 8 November 2017 and was subsequently detained on remand.

On 16 November 2007 the investigating judge opened a judicial criminal investigation against the applicant in respect of the criminal offence of aggravated murder. She, inter alia: ordered that a reconstruction be carried out at the crime scene; appointed a psychiatrist and a psychologist to examine the applicant and prepare opinions; ordered forensic experts in vehicle science and car crash investigations to prepare reports on specific aspects of the case; and again ordered that the M company and the S company provide traffic data relating to X’s and the applicant’s telephones. She also examined a number of witnesses.

On 29 November 2007 the applicant was, at his request, heard by the investigating judge, to whom he admitted to running over X, but submitted that this had merely been an accident.

On 24 December 2007 the state prosecutor filed an indictment for aggravated murder against the applicant, alleging that he had killed X by stabbing him thirteen times and cutting him at least nine times on his head, neck, chest and other parts of the body and running over him in his car.

Following his unsuccessful objection to the indictment, the applicant was put on trial for aggravated murder. A number of hearings were held at which witnesses, experts and evidentiary material were examined and various expert reports ordered and subsequently read out.

On 10 June 2008 the Koper District Court found the applicant guilty as charged and sentenced him to thirteen years in prison.

On 12 December 2008 the Koper Higher Court, after an appeal by the applicant, quashed the first-instance judgment, finding that the lower court had failed to clarify the facts surrounding a possible shoe imprint on the victim’s back, which could have indicated the presence of a third person at the scene of the crime. The case was remitted to the Koper District Court for fresh examination.

In the retrial proceedings, several hearings were held and the applicant lodged an application for the exclusion of all evidence from (i) the records of the crime-scene investigation until (ii) the records of the last hearing in the first set of proceedings, on the grounds that that evidence had allegedly been tainted by the unlawful examinations of his and X’s telephones. He argued that the examinations of his and X’s telephones had violated his and X’s rights under Article 37 of the Constitution (see paragraph 32 above) and that the relevant court orders had been issued a week too late. He also requested that the police officers who had subjected him to a security check (see paragraph 9 above) and arrested him be examined in this connection. Both requests were refused by the court.

On 4 September 2009 the Koper District Court convicted the applicant for the aggravated murder of X and sentenced him to twelve years’ imprisonment. In view of (i) the expert opinions regarding the shoe traces on X’s back which had led to the conclusion that the presence of another person at the crime scene prior to X’s death could not be excluded, and (ii) the fact that the knife with which X had been stabbed and cut had not been found, the Koper District Court held that there was insufficient proof that the applicant had stabbed and cut X. However, the court found on the basis of the forensic medical evidence that X had still been alive before he had been run over by the car and that the injuries to X’s chest, spine and aorta, which had been the direct cause of his death, had been caused by the applicant having intentionally run him over with his car. It further found it proven on the basis of the evidence at the scene – such as (i) a piece of rubber tube belonging to the applicant’s car, (ii) the applicant’s biological traces found on X’s body, (iii) X’s biological traces found on, inter alia, the applicant’s clothing (which was blood-stained) and on the outside of the applicant’s car – that the applicant had been beyond doubt at the crime scene and had had contact with X. Referring, in particular, to the findings of the experts in vehicle science, who had performed reconstructions at the scene testing the applicant’s versions of events, the court discounted the possibility that the applicant had run over X by accident. The court furthermore found that the applicant and X had known each other, which was confirmed by the applicant’s statements as well as by telephone records and witness testimony. Lastly, the court referred to the telephone records, together with other evidence such as medical evidence and X’s petrol bill, when elaborating on the time of death, finding that it had undoubtedly occurred on 4 November 2007 – probably sometime after 6.24 p.m., when the last (missed) call from X’s telephone had been recorded on the applicant’s telephone.

As regards the procedural decisions taken during the proceedings the court gave the following explanation:

- It refused a request lodged by the applicant for access to the police notes on the examination of his telephone because it would have been unlawful to include in the file evidence obtained without a court order.

- In view of the foregoing conclusion that the examination of the applicant’s telephone could have not been admitted to the file, the court refused as unnecessary a request by the applicant for the examination of the officers who had seized the applicant’s telephone (see paragraph 20 above).

- As regards the exclusion of evidence (see paragraph 20 above) the court explained that the applicant had become a subject of investigation following the examination of the data in X’s telephone, which had not interfered with the applicant’s rights under Article 37 of the Constitution (see paragraph 32 below). It further noted that the examination of the applicant’s telephone had amounted to a violation of the said provision but carried no evidentiary weight, as at that point the police had already obtained the necessary information from X’s telephone. In addition, the court noted that the results of this examination had not been included in the file and had not been relied on by the court.

On 9 November 2009 the applicant appealed, complaining, inter alia, that the judgment had violated his defence rights. In particular, he alleged that the district court should have excluded all evidence from the file because it had been based on the police’s examinations of X’s and his own mobile telephone without the necessary court order. He further stated as follows:

“It is irrelevant that the police, by [their] unlawful interference with [X]’s mobile telephone, did not directly violate the appellant’s right under Article 37 of the Constitution [“Privacy of correspondence and other means of communication”], because the fact remains that the police obtained that evidence (data from [X]’s mobile telephone) without a court order – that is to say unlawfully.”

The applicant moreover argued that the examination of X’s telephone alone had not adduced enough evidence to arrest the applicant and that that had been possible only after the applicant’s telephone had been examined. Thus, in his view, the impugned judgment should not have concluded that the examination of his telephone had had insignificant evidentiary value.

On 27 January 2010 the Koper Higher Court allowed the applicant’s appeal in part and reduced his sentence to nine years in prison. The court agreed with the applicant that the act of which he had been convicted – that is to say running over X with his car – did not in itself constitute murder with aggravating factors (that is to say aggravated murder), as the firstinstance court had not proved that X had sustained severe physical pain or psychological suffering. However, all the other applicant’s complaints, including the one regarding the unlawful examinations of his and X’s mobile telephones, were dismissed.

As regards the examination of X’s telephone the higher court found that, regardless of whether the police officers had examined X’s telephone before the issuance of the court order, what was crucial was that they had received the court order for the telephone records to be produced before they had identified and located the applicant. Therefore, the examination of X’s mobile telephone, which had constituted an urgent step in the police inquiry, had not been conducted in violation of his constitutionally guaranteed right to protection of the privacy of communication. As regards the examination of the applicant’s mobile telephone, the higher court agreed with the lower court that “the examination of the applicant’s telephone [had been] ... unconstitutional, but this violation had not been important in the evidentiary sense”. The higher court also upheld the lower court’s decision not to obtain from the police their notes on the examination of the applicant’s telephone.

On 8 April 2010 the applicant lodged an appeal on points of law, complaining of, inter alia, the allegedly unlawful examinations of X’s and the applicant’s telephones and reiterating the arguments he had put forward in his appeal (see paragraphs 23 and 24 above). In particular, he argued that the police had obtained crucial evidence – that is to say the message with explicitly sexual content – when examining X’s telephone without having a court order to do so, and that his arrest had been based on a subsequent unlawful examination of his telephone.

On 22 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law. Firstly, as regards the police examination of X’s mobile telephone, the Supreme Court pointed out that the applicant had not even argued that the examination of X’s telephone had directly violated his own right to privacy. While not excluding the possibility that the examination of a deceased’s person’s telephone might impinge upon the most intimate spheres of his or her dignity, it considered that in the case at hand it had not interfered with X’s right to privacy, as personality rights ceased at death. Neither had, in the Supreme Court’s view, the applicant’s own constitutionally guaranteed privacy rights been interfered with, as the examination had not revealed his identity. Moreover, the district state prosecutor and the duty investigating judge had been present at the scene of the crime when the police had discovered the telephone in X’s car, and the applicant had been arrested only after the court order for the examination of X’s telephone had been issued. The Supreme Court concluded that the police’s examination of X’s mobile telephone had not interfered with the applicant’s right to privacy and that the impugned examination had not been causally related to the incriminating evidence.

Secondly, with regard to the police’s examination of the applicant’s mobile telephone, the Supreme Court noted that it had been undertaken without a court order and referred to the Koper Higher Court’s finding that the examination had been unconstitutional. However, in the Supreme Court’s view, the information on whether the text message with sexual content had been sent from the applicant’s telephone would have inevitably been discovered, either (i) by means of a simple call to the number from which the message had been sent, (ii) by checking the applicant’s telephone’s SIM card (for which, in the Supreme Court’s view, no court order would have been necessary), or (iii) on the basis of a court order, which had in point of fact later been issued. In view of this conclusion, the Supreme Court considered that, regardless of the fact that the police had examined the applicant’s telephone without a court order, the identification of the applicant’s mobile telephone number as the one from which the text message in question had been sent did not constitute inadmissible evidence that should have been excluded from the case file.

The applicant lodged a constitutional complaint, reiterating the allegations made in his previous appeals. Relying on Article 37 (see paragraph 32 below) the applicant argued that the examinations of his and X’s telephone had been unlawful and that the examination of his telephone had violated the aforementioned provision, as well as Article 8 of the Convention. Relying on Article 15 of the Constitution (again, see paragraph 32 below), the applicant argued that the lower courts should have excluded the evidence obtained unlawfully. In particular, as regards the examination of X’s telephone, the applicant argued that he “had not sought redress for the violation of X’s right to privacy (mental integrity) and freedom of communication as he had not been entitled to do so [... but rather] had exclusively pointed out that the violation had occurred and the [trial] court had based its decision [to convict the applicant] on the consequences of that violation ...” In this connection he, referring to X’s “right to piety” (pravica do pietete), disputed the Supreme Court’s view that X’s right to privacy had ceased with his death and pointed out that a court order had been nevertheless subsequently issued. With regard to the Supreme Court’s finding that the evidence in question would have been inevitably discovered, the applicant argued that the domestic law contained a strict rule requiring the exclusion of all evidence obtained by means violating human rights (“the domestic exclusionary rule”). He furthermore argued that there had been a violation of Article 29 (see paragraph 32 below) of the Constitution because the first-instance court refused to obtain from the police their notes on the examination of his telephone.

On 28 January 2013 the Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration, pursuant to section 55b(2) of the Constitutional Court Act (see paragraph 37 below).


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)

András Sajó;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Robert Spano;Vincent A. De Gaetano;Ksenija Turković

The applicant company is a public limited liability company (aktsiaselts), registered in Estonia.

The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania.

At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms.

Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately.

The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’s Internet site there were “Rules of comment” which included the following:

“The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ...

Delfi prohibits comments whose content does not comply with good practice.

These are comments that:

– contain threats;

– contain insults;

– incite hostility and violence;

– incite illegal activities ...

– contain off-topic links, spam or advertisements;

– are without substance and/or off-topic;

– contain obscene expressions and vulgarities ...

Delfi has the right to remove such comments and restrict their authors’ access to the writing of comments ...”

The functioning of the notice-and-take-down system was also explained in the “Rules of comment”.

The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure the freedom of expression as well as the protection of everyone’s honour and good name, including sections 1043 and 1046 of the Obligations Act (Võlaõigusseadus).

On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder at the material time.

On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed against L.

On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments:

“1. (1) there are currents in [V]äinameri

(2) open water is closer to the places you referred to, and the ice is thinner.

Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag

bloody shitheads...

they bathe in money anyway thanks to that monopoly and State subsidies and have now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!

good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!

[little L.] go and drown yourself

aha... [I] hardly believe that that happened by accident... assholes fck

rascal!!! [in Russian]

What are you whining for, knock this bastard down once and for all [.] In future the other ones ... will know what they risk, even they will only have one little life.

... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he.

“a good man lives a long time, a shitty man a day or two”

If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault

and can’t anyone defy these shits?

inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.

wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that.

The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.

Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless towards them – it is really them who govern the state), because they only live for today. Tomorrow, the flood.

this [V.] will one day get hit with a cake by me.

damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way

bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!

Estonian state, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram’s Michaelmas. Actually sorry for [L.] – a human, after all... :D :D :D

... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :)

fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year

you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the state and [L.] do not care about the people’s opinion) ... just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)”

On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company.

On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.

On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company.

At the hearing of 28 May 2007 the representatives of the applicant company submitted, inter alia, that in cases like that of the “Bronze Night” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, also on its own initiative.

By a judgment of 25 June 2007 L.’s claim was dismissed. The County Court found that the applicant company’s liability was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). The court considered that the comment environment in the applicant company’s news portal was to be distinguished from the portal’s journalistic area. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them.

On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company’s liability was excluded under the Information Society Services Act. The County Court’s judgment was quashed and the case was referred back to the first-instance court for fresh consideration.

On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company.

On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had placed a note on its Internet site to the effect that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments.

The County Court found that the news article itself published in the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage.

On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.

The Court of Appeal rejected the applicant company’s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments. Thus, the applicant company was a provider of content services rather than of technical services.

On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning.

The Supreme Court held as follows:

“10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal’s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure.

The parties do not dispute the following circumstances:

• on 24 January 2006 the defendant’s Internet portal ‘Delfi’ published an article entitled ‘SLK Destroyed Planned Ice Road’;

• the defendant provided visitors to the Internet portal with the opportunity to comment on articles;

• of the comments published [avaldatud] on the aforementioned article, 20 have contents that are derogatory towards the plaintiff [L.];

• the defendant removed the derogatory comments after the plaintiff’s letter of 9 March 2006.

The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the contents of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful contents.

The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act].

According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to the provision of the ISSA referred to, ‘information society services’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service.

Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (1) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; (2) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider’s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the contents of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information.

Since the Information Society Services Act is based on Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by recital 42 of the preamble to the Directive. According to this recital, the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘content services’ who have control over the contents of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive.

The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments [hinnangud] and opinions (comments). In the comment environment, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant’s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the writer of the comments does not mean that the defendant has no control over the comment environment. The defendant enacts the rules for the comment environment and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant’s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not prompt the conclusion that the publishing of comments is not under the defendant’s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comment environment, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case.

There is no legal dispute over the fact that the defendant is the publisher of an article entitled ‘SLK Destroyed Planned Ice Road’, published on the Delfi Internet portal on 24 January 2006. The County Court found that the defendant too must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the writers of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the writers of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant.

The Chamber has explained the definitions of disclosure and discloser in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [avaldamine] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [avaldamine] of information in the media, the discloser/publisher [avaldaja] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ajakirjanduslik tegevus]. At the same time, because of the nature of Internet media [internetiajakirjandus], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [trükiajakirjanduse väljaanne]. While the publisher [väljaandja] [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [väljaandja] of printed media and an Internet portal operator are publishers/disclosers [avaldajad] as entrepreneurs.

In cases concerning a value judgment [väärtushinnang] that prejudices and denigrates a person’s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [hinnangud] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public).

In reply to the allegations in the defendant’s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following.

The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone’s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person’s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person’s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person’s honour and good name.

In the interests of the protection of a person’s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff’s honour was not justified; it was therefore unlawful as there was no discussion of the topic in the comments but the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Law of Obligations is interpreted in conformity with the Constitution, injuring a person’s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats.

The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the writers of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1)(4) of the Obligations Act).

According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant’s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless.

On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful contents. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person’s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant’s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [süü] (section 1050(1) of the Obligations Act).”

On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the rules of commenting. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the rules of commenting was monitored as well. According to the information published, the number of comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The share of defamatory comments had been less than 0.5% of the total number of comments.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1966 and lives in Roslavl, the Smolensk Region.

On 15 June 2003 the applicant was arrested on suspicion of unintentional manslaughter. On 30 September 2003 he was committed to stand trial before the Leninskiy District Court of Smolensk. On 10 October 2003 the District Court fixed the first trial hearing and ordered that the applicant should remain in custody.

On 26 April 2004 the Leninskiy District Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. The judgment became final on 10 July 2004 when the Smolensk Regional Court upheld it on appeal.

In February 2005 the applicant lodged an action with the Leninskiy District Court, arguing that his detention from 2 to 26 April 2004 had been unlawful as there had been no legal order authorizing his detention during that period. He sought compensation for non-pecuniary damage.

On 23 September 2005 the Leninskiy District Court, in the presence of a defendant’s representative, dismissed the applicant’s action, finding that the applicant’s conviction precluded him from claiming compensation in respect of non-pecuniary damages. Its operative part reads as follows:

“Given that Mr Artemenko was found guilty of the crime in relation to which he had been detained since 17 June 2003, he did not acquire the right to exoneration and to compensation in respect of non-pecuniary damage.

Therefore, there exist no grounds for satisfying Mr Artemenko’s claim for compensation in respect of his unlawful detention pending trial.”

The applicant appealed, complaining, inter alia, that the District Court had refused to secure his attendance and had not provided him with copies of materials presented by the defendants. He also maintained his initial claim for compensation.

On 29 November 2005 the Smolensk Regional Court upheld the judgment of 23 September 2005 in the applicant’s absence.


George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms Jasna Raljević, is a citizen of Bosnia and Herzegovina, who was born in 1943 and lives in Mostar. She was represented before the Court by Ms M. Škoro, a lawyer practising in Mostar.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

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

In 1949 the applicant and her parents moved in a flat in Mostar owned by E.R.’s father. In 1963 the applicant’s parents were given the occupancy right on that flat.

In 1998, following her mother’s death, the occupancy right was transferred to the applicant in accordance with the Housing Act 1974 (see paragraph 24 below).

On 12 November 2003 E.R., who inherited the flat after his father’s death, initiated proceedings before the Ministry of Spatial Planning and Construction of the Herzegovina-Neretva Canton (Ministarstvo građenja i prostornog uređenja Hercegovačko-Neretvanskog Kantona; “the Cantonal Ministry”) for the applicant’s eviction and offered her a replacement flat in the same building (“the replacement flat”). The claim was based on section 56 of the Housing Act 1974 which authorised owners of privately owned flats allocated to occupancy right holders to seek their eviction under the condition that they provide them with a suitable replacement flat (see paragraph 24 below).

On 4 April 2005 the Cantonal Ministry ordered the applicant to vacate the flat in question. It further ordered E.R. to let her into the replacement flat.

On 9 September 2005 the Federal Ministry of Spatial Planning and Environment (Federalno ministarstvo prostornog uređenja i okoliša; “the Federal Ministry”), quashed the decision of 4 April 2005 and remitted the case for a re-hearing.

On 4 January 2006 the Cantonal Ministry rejected E.R.’s request. It held that in case of eviction, the applicant would lose her occupancy right on the flat in question, whereas she would not be able to acquire the same right on the replacement flat since from 6 December 2000 it was no longer possible to acquire occupancy rights (see paragraph 25 below).

On 19 September 2006 and 17 December 2007, respectively, the Federal Ministry and the Mostar Cantonal Court (“the Cantonal Court”) upheld the decision of 4 January 2006.

On 27 January 2010 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) rejected E.R.’s request for extraordinary judicial review.

On 25 February 2008 E.R. lodged a constitutional appeal.

The applicant had been invited to submit her third-party comments in the proceedings before the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). However, that court explicitly stated that its examination was limited to E.R.’s appeal.

On 25 September 2010 the Constitutional Court held that E.R.’s request for eviction was based on relevant domestic law (section 56 of the Housing Act 1974; see paragraph 24 below) and that in rejecting it the administrative bodies and the Cantonal Court violated his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention. It quashed the Cantonal Court’s judgment of 17 December 2007 (see paragraph 10 above) and remitted the case for a re-hearing (having been given upon an extraordinary remedy, the Supreme Court’s judgment of 27 January 2010 was not examined in these proceedings).

On 20 December 2010, in the re-hearing proceedings, the Cantonal Court quashed the administrative decisions of 4 January 2006 and 19 September 2006 (see paragraphs 9 and 10 above) in line with the Constitutional Court’s decision.

On 16 May 2011 the Cantonal Ministry accepted E.R.’s request and ordered the applicant to vacate the flat in question within fifteen days from the date of notification of that decision. Furthermore, it ordered E.R. to enable the applicant to use the replacement flat.

On 11 July 2011 and 9 March 2012, respectively, the Federal Ministry and the Cantonal Court upheld the decision of 16 May 2011.

On 14 March 2013 the Supreme Court rejected the applicant’s request for extraordinary judicial review of the Cantonal Court’s judgment of 9 March 2012.

On 11 September 2012 an eviction order was issued. The eviction was scheduled for 17 October 2012 at 12 p.m. and was to be carried out with police assistance in view of the fact that the applicant had not left the flat on her own motion within the prescribed time-limit.

On 21 November 2012 and 4 October 2013 the eviction order was upheld by the Federal Ministry and the Cantonal Court, respectively.

After one rescheduling at the applicant’s request, the eviction took place on 19 November 2012 when the Cantonal Ministry’s commission, in the presence of police officers, E.R.’s representative, the applicant’s representative and the representative of the competent social work centre, made a list of the applicant’s personal belongings, transferred them to the replacement flat and sealed it. The keys to the flat were given to E.R.

On 22 November 2012, 17 January, 11 February, 28 February and 1 April 2013 the Cantonal Ministry invited the applicant’s representative to collect the keys to the replacement flat. It would appear that until now she has failed to do so.

The applicant is currently staying with her relatives in Sarajevo.

In the former Socialist Federal Republic of Yugoslavia nearly all flats were under the regime of “social ownership”. They were generally built by socially-owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. The matter has been regulated by the Housing Act 1974 (Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Bosnia and Herzegovina nos. 13/74, 23/76, 34/83, 14/84, 12/87 and 36/89; Official Gazette of the Republic of Bosnia and Herzegovina no. 2/93, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99 and 19/99; Official Gazette of the Republika Srpska nos. 19/93, 22/93, 12/99 and 31/99) which is still in force in Bosnia and Herzegovina. An occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights were transferred, as a matter of right, to their surviving spouses or registered members of their family households who were also using the flat (sections 19 and 21 of the Housing Act 1974).

Until the entry into force of the Housing Act 1974, occupancy right could also be awarded in respect of privately owned flats. Those flats were also allocated by public bodies. With the Housing Act 1974 it was no longer possible to award occupancy right in respect of flats in private ownership. However, the pre-existing occupancy rights in respect of such flats were preserved (section 2(2) of this Act). Section 56 of this Act, on the other hand, authorised owners of such flats to seek eviction of the occupancy right holders under the condition that they provide them with another suitable flat.

On 6 December 2000 all occupancy rights ceased to exist (section 46(1) of the Privatisation of Flats Act 1997; Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09). The occupancy right holders on socially-owned flats were entitled to purchase their flats under that Act. If they did not purchase the flats, they became tenants. However, the occupancy right holders on privately owned flats could not purchase their flats (section 47(1) of this Act). It would appear that their situation continued to be regulated by the relevant provisions of the Housing Act 1974 and that they became “protected tenants” (zaštićeni stanari).

According to Rule 23 (2) and (3) of the Rules of the Constitutional Court, the court shall transmit the appeal to the other party to the impugned proceedings for comments. Failure to submit such comments shall not affect the course of the proceedings before the Constitutional Court.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The first applicant, Mr Abdul Madjid Mohamed Danawar, is a Syrian national, born in 1968. The second and third applicants, Mrs Irina Danawar and Ms Eleonora Danawar, are Bulgarian nationals, born respectively in 1973 and 1996. They were represented by Mr Y. Grozev and Mrs N. Dobreva, lawyers practising in Sofia.

The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice.

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

The first applicant settled in Bulgaria in 1990. He graduated and started practising as a doctor. In 1995 the first and second applicants married. Their daughter, the third applicant, was born in 1996. On 1 November 1995 the first applicant was granted permanent residence in Bulgaria.

On 11 and 12 August 1999 the authorities, who suspected the first applicant of participating in organised drug trafficking, conducted a search and seizure operation in his flat.

On 17 February 2000 the head of the passports department at the National Police Service issued an order depriving the first applicant of the right to reside in Bulgaria. The order relied on the reasons set out in proposal no. 533/10.02.2000, namely that the first applicant had endangered national security and that there was information that he was a member of a criminal group and had committed crimes with intent. No factual grounds were given. The order further stated that it was not subject to judicial review.

On 13 March 2000 the director of the District Police Department in Stara Zagora issued an order depriving the first applicant of the right to enter the country for a period of ten years.

On 1 November 2000 the first applicant was arrested pursuant to the orders for his expulsion and prohibition on entering the country. On 3 November 2000 the head of the passports department at the National Police Service ordered the first applicant’s expulsion. The order stated that it was not subject to judicial review. Again, no factual grounds were given. The decision also ordered that the applicant’s detention pending removal.

In December 2000 the first applicant was deported to Syria.

The order of 17 February 2000 depriving the first applicant of his right to reside in the country and the order of 3 November 2000 for his expulsion were never officially served on the applicant. The second applicant obtained a copy of the expulsion order in December 2002.

On 26 May 2003 the first and second applicants sought judicial review in the Sofia City Court of the orders depriving the first applicant of his right to reside in the country and for his expulsion, stating that the impugned measures were arbitrary and amounted to unjustified interference with the applicants’ right to respect for their private and family life.

In a decision of 23 March 2004 the Supreme Administrative Court discontinued the proceedings in respect of the second applicant finding that none of her rights had been at stake.

In a decision of 14 June 2004 the Sofia City Court discontinued the proceedings in respect of the first applicant, finding that the orders had not been subject to judicial review either at the time they had been issued or at the time the first applicant had sought judicial review. On appeal, in a decision of 1 November 2004 the Supreme Administrative Court quashed the lower court’s decision and remitted the case to the Sofia City Court for a fresh examination. The court held that although the Aliens Act provided that expulsion orders issued on national security grounds were not subject to judicial review, following the Court’s judgment in Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002) such appeals had to be examined by the courts.

In a judgment of 12 May 2006 the Sofia City Court dismissed the appeal. It held that the application had been submitted in time because there was no indication whatsoever that the orders had been officially served on the first applicant and therefore the time-limit for seeking judicial review had not started to run. As to the merits of the application, the court found, on the basis of the facts established in proposal no. 533/10.02.2000 which stated that since 1996 the first applicant had been involved in heroin trafficking from Bulgaria to Greece, that the orders were lawful. The court also found the first applicant’s statements regarding his marital status and links with the country irrelevant.

The first applicant appealed in cassation. In a final judgment of 20 June 2007 the Supreme Administrative Court upheld the Sofia City Court’s judgment.

On an unspecified date the applicants sought judicial review of the order of 13 March 2000, which prohibited the first applicant from entering the country for a period of ten years. In a final judgment of 8 October 2009 the Supreme Administrative Court declared the order null and void, holding that at the time at which it was issued the administrative authority did not have power to issue such an order.

Following his expulsion in December 2000, the first applicant settled in Syria. In 2003 the second and third applicants briefly visited him. In August 2005 they moved to Syria in order to permanently settle there. In June 2008 the second and third applicants returned to Bulgaria and in August 2009 they visited Syria on another occasion. In September 2009 the second applicant returned to Bulgaria while the child remained in Syria with her father. On 7 February 2011 the first applicant returned to Bulgaria for a few days.

Section 42(1) of the Aliens Act 1998 provides for the expulsion of aliens where their presence in the country poses a serious threat to national security or public order. Section 44(4)(3) provides that expulsion orders are immediately enforceable.

Section 46(2), as in force until 10 April 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. Following the Court’s judgment in Al-Nashif v. Bulgaria (cited above), in which the Court found the above regulatory arrangements contrary to Articles 8 and 13 of the Convention, the Supreme Administrative Court departed from its previous case-law. In a number of judgments and decisions given between 2003 and 2006 it held, with reference to Al-Nashif, that the provision in section 46(2) debarring applicants from seeking judicial review was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security grounds were amenable to judicial review.

Section 46(2) was amended with effect from 10 April 2007 and now provides that an expulsion order may be challenged before the Supreme Administrative Court, whose judgment is final.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The list of applicants, their representatives and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law.


CASE OF ANTIMONOVA AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Angelika Nußberger;Ganna Yudkivska;Vincent A. De Gaetano

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.