CASE OF CARVALHO PINTO DE SOUSA MORAIS v. PORTUGAL

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

Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1945 and lives in Bobadela.

In December 1993 the applicant became a patient of the gynaecology department of the Alfredo da Costa Maternity Hospital (since renamed the Central Lisbon Hospital – Centro Hospitalar de Lisboa Central, hereinafter “the CHLC”).

On 9 December 1993 the applicant was diagnosed with bartholinitis, a gynaecological disease, on the left side of her vagina (bartholinite à esquerda). She started treatment, which included drainages (drenagens). After each drainage the Bartholin gland would swell, causing the applicant considerable pain. She would thus require a second drainage and painkillers.

She was offered surgery for the condition during a consultation at the beginning of 1995.

On 21 May 1995 the applicant was admitted to the CHLC for a surgical procedure to remove the left Bartholin gland. On 22 May 1995 the applicant had both glands, on the left and right sides of the vagina, removed.

On an unknown date after being discharged, the applicant began to experience intense pain and a loss of sensation in the vagina. She also suffered from urinary incontinence, had difficulty sitting and walking, and could not have sexual relations.

On an unknown date the applicant was informed after being examined at a private clinic that the left pudendal nerve (nervo pudenda do lado esquerdo) had been injured during the operation.

On 26 April 2000 the applicant brought a civil action in the Lisbon Administrative Court (Tribunal Administrativo do Círculo de Lisboa) against the CHLC under the State Liability Act (ação de responsabilidade civil extracontratual por facto ilícito), seeking damages of 70,579,779 escudos (PTE), equivalent to 325,050,020 euros (EUR), of which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage owing to the physical disability caused by the operation.

On 4 October 2013 the Lisbon Administrative Court ruled partly in favour of the applicant. It established, inter alia, the following facts:

(i) that the applicant had suffered since 1995 from a physical deficiency which had given her an overall permanent degree of disability of 73% and that the disability had resulted from the left pudendal nerve being cut;

(ii) after being discharged from hospital, the applicant had complained of pain associated with insensitivity in the part of the body which had been operated on and which had become swollen;

(iii) the left pudendal nerve had been injured during the operation, which had caused the pain from which the applicant was suffering, the loss of sensitivity and the swelling in the vaginal area;

(iv) the applicant had suffered from a decrease in vaginal sensitivity due to the partial lesion to the left pudendal nerve.

On the merits, the Lisbon Administrative Court found that the surgeon had acted recklessly by not fulfilling his objective duty of care, in breach of leges artis, and established that there was a causal link between his conduct and the injury to the applicant’s left pudendal nerve. The Lisbon Administrative Court also established that it was that injury which caused her, among other problems, the pain and loss of sensation in the vagina and urinary incontinence. As a consequence, she had difficulty walking, sitting and having sexual relations, which, all together, made her feel diminished as a woman. Consequently, the applicant was also depressed, had suicidal thoughts and avoided contact with members of her family and friends. For those reasons the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 in compensation for non-pecuniary damage. In respect of pecuniary damage, the Lisbon Administrative Court awarded her EUR 92,000, of which EUR 16,000 was for the services of a maid the applicant had had to hire to help her with household tasks.

On an unknown date the CHLC appealed to the Supreme Administrative Court (Supremo Tribunal Administrativo) against the judgment of the Lisbon Administrative Court. The applicant lodged a counter-appeal (recurso subordinado), arguing that she should have received EUR 249,399 in compensation and that the CHLC’s appeal should be declared inadmissible. An opinion from the Attorney General’s Office attached to the Supreme Administrative Court (Procuradora Geral Adjunta junto do Supremo Tribunal Administrativo) stated that the CHLC’s appeal should be dismissed because it had been established that there had been a violation of leges artis. As a consequence, the various requirements of the obligation to pay compensation had been verified and the first-instance court had decided on compensation in an equitable and proper way.

On 9 October 2014 the Supreme Administrative Court upheld the first-instance judgment on the merits but reduced, inter alia, the amount that had been awarded for the services of the maid from EUR 16,000 to EUR 6,000 and the compensation for non-pecuniary damage from EUR 80,000 to EUR 50,000. The relevant part of the judgment on those points reads as follows:

“... with respect to damages related to the charges for the maid ... [the plaintiff] could not show the amount paid under that head. Also ... we consider that the award of EUR 16,000 under that head is manifestly excessive.

Indeed, (1) it has not been established that the plaintiff had lost her capacity to take care of domestic tasks, (2) professional activity outside the home is one thing while domestic work is another, and (3) considering the age of her children, she [the plaintiff] probably only needed to take care of her husband; this leads us to the conclusion that she did not need to hire a full-time maid ...

Lastly, as regards non-pecuniary damage, it is important to set an amount which compensates the plaintiff for her pain and loss of sensation and swelling in the vaginal area, and for the difficulty sitting and walking, which causes her distress and prevents her from going about her everyday life, forcing her to use sanitary towels on a daily basis to conceal urinary and faecal incontinence and which has limited her sexual activity, making her feel diminished as a woman. In addition, there is no medical solution to her condition. All this has caused her severe depression, expressing itself in anxiety and somatic symptoms manifested in the difficulty she has sleeping, deep disgust and frustration with the situation in which she finds herself, which has turned her into a very unhappy person and which inhibits her from establishing relationships with others and has caused her to stop visiting family and friends, from going to the beach and theatre and which has given her suicidal thoughts.

It should be noted, however, that the plaintiff has been suffering from the gynaecological condition for a long time (at least since 1993) and that she had already undergone various kinds of treatment without any acceptable result and that it was that lack of results and the impossibility of curing the condition otherwise that was the motivation for surgery. She had already had unbearable pain and symptoms of depression before [surgery]. This means that the plaintiff’s complaints are not new and that the surgical procedure only aggravated an already difficult situation, a fact which cannot be ignored when setting the amount of compensation.

Additionally, it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age.

Thus, having regard to all those aspects, we believe that the compensation awarded at first instance exceeded what could be considered reasonable and, as such, the plaintiff should be awarded EUR 50,000 in compensation [in respect of non-pecuniary damage].”

On 29 October 2014 the Attorney General’s Office attached to the Supreme Administrative Court applied to the Supreme Administrative Court to have the judgment of 9 October 2014 declared null and void (nulidade do acórdão) in the part concerning the amount awarded for non-pecuniary damage. It argued that the reasoning in the judgment and the decision on the amount of compensation were contradictory. It further submitted that the compensation award should not have taken account of the applicant’s symptoms before the medical intervention, as if only a worsening of those symptoms had been at stake. The relevant parts of the application read as follows:

III – In the instant case, we are dealing with surgical intervention which aimed exclusively at extracting the Bartholin glands.

During that surgical procedure the left pudendal nerve was partly damaged.

The pudendal nerve ... is a different organ from the one which was the object of the surgical intervention.

Following the extraction of the glands the plaintiff suffered damage which was considered as being established and which specifically arose from the lesion in question.

IV- In view of the factual basis of the judgment and having regard to the fact that ‘in the absence of unlikely and unexpected occurrences doctors would have cured the plaintiff’s illness and she could have returned to her normal life’, the decision setting the amount of compensation for non-pecuniary damage should not have taken account of the plaintiff’s pain and symptoms of depression prior to the surgical intervention as if they had worsened.

That is because, according to the judgment, they would have disappeared once the Bartholin glands had been removed and the plaintiff’s condition cured by surgery.

V – The reasoning in the judgment leads logically to a different decision.

That would be to set compensation for non-pecuniary damage on the basis of the fact that the plaintiff would have been cured if the pudendal nerve had not been injured.”

On 4 November 2014 the applicant applied to the Supreme Administrative Court to join the Attorney General’s appeal of 29 October 2014, arguing that the judgment of 9 October 2014 should be declared null and void in the part concerning the amount of non-pecuniary damage she had been awarded.

On 29 January 2015 the Supreme Administrative Court dismissed the appeals by the Attorney General’s Office and the applicant and upheld its judgment of 9 October 2014. It considered that the causal link between the injury to the pudendal nerve and the alleged damage had been established. However, that injury had not been the only cause of damage to the applicant. In the opinion of the judges of the Supreme Administrative Court, the applicant’s health problems prior to the operation, and her gynaecological and psychological symptoms in particular, could not be ignored and had been aggravated by the procedure.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku

The applicants were born in 1937, 1933, 1941 and 1934, respectively, and live in Albania and the United States of America.

On 30 December 1994 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 2,461.97 sq. m and decided to restore the property. Since buildings had been constructed on the land by a third party, the Commission ruled that the third party should pay rent for the land or re-purchase the land pursuant to an agreement to be entered into between the parties. It also recognised the applicants’ right to first refusal of the buildings.

On 18 February 1997 the applicants lodged a civil claim with the Tirana District Court seeking the annulment of a 1996 sale contract entered between the State and the third party over two plots of lands measuring 197 sq. m and 195 sq. m, which they claimed to own. The applicants also sought the payment of rent by the third party pursuant to the 1993 Property Act. In the same set of proceedings, the third party lodged a counter action requesting the partial annulment of the Commission decision.

On 24 April 2002 the Supreme Court gave a final decision dismissing the applicants’ claims. It also dismissed their right to first refusal as regards the buildings on the plots of land which had been granted by the Commission. It decided that the applicants are entitled to compensation in respect of the plot of land measuring 2,461.97 sq. m to be determined in accordance with the 1993 Property Act.

On 22 October 2004 the Constitutional Court, sitting as a full bench, found no violation of the applicants’ right to a fair trial.

To date, no compensation has been paid.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1963 and lives in Warsaw.

The applicant and A.W. were in a relationship that started in May 2003. On 13 April 2004 their twin daughters were born (A. and J.). Subsequently, in February 2005, the applicant and A.W. separated.

On 2 November 2007 the applicant lodged a motion with the Warsaw Mokotów District Court (Sąd Rejonowy) for the establishment of contact and an interim contact order.

At the same time A.W. lodged a motion with the Warsaw District Prosecutor alleging that the applicant had sexually abused A. and J. On 8 January 2008 the prosecutor informed the Warsaw District Court about the allegations of sexual abuse. The court ordered a social enquiry report (wywiad środowiskowy) into the case, which was conducted on 9 February 2008. On 19 February 2008 the prosecutor instituted a criminal investigation into the allegations of sexual abuse.

On 21 January 2008 the Warsaw Mokotów District Court issued an interim contact order. Under the terms of that order, the applicant was allowed to visit the children every other Sunday between 10 a.m. and 2 p.m.

On 28 March 2008 the court stayed the custody proceedings as the criminal proceedings into the alleged sexual abuse were pending.

Meanwhile, on 15 June 2008 the Warsaw District Court of its own motion instituted proceedings concerning the limitation of the applicant’s custody rights.

During the course of the criminal proceedings, the prosecutor obtained two expert reports and heard a number of witnesses. On 31 October 2008 the prosecution discontinued the criminal proceedings into the allegations of sexual abuse on the grounds that there was not enough evidence that the alleged offences had been committed. The court-appointed expert established that A. and J. had not demonstrated the psychological symptoms of a sexually abused child. However, according to a private expert opinion provided by A.W., the facts of the case demonstrated that the children had been sexually abused. A.W. appealed against the decision to discontinue the proceedings. The prosecutor’s decision was upheld by the Warsaw Mokotów District Court.

On 20 January 2009 the Warsaw Mokotów District Court resumed the proceedings for the establishment of contact. At the same time it also resumed the proceedings for limitation of the applicant’s custody rights.

On 10 June 2009 the District Court modified the interim contact order, allowing the applicant to see his daughters every Saturday between 9 a.m and 6 p.m. in their home. The court also ordered A.W. to set a new time in case a Saturday visit was not possible. Both parties lodged interlocutory appeals. They were dismissed on 9 November 2009.

On 3 September 2009 the applicant submitted a report to the court indicating that the mother had failed to comply with the terms of the access arrangements. The applicant’s letter also contained a description of several visits that had taken place between May 2008 and August 2009.

On 23 December 2009 the mother applied for a change to the access arrangements. She asked the court to order visits every two weeks for four hours.

On 24 February 2010 the Warsaw Mokotów District Court again modified the interim contact order, allowing the applicant to visit his children every Saturday between 10 a.m. and 2 p.m. in their home. The court also ordered that the parents and children be examined by experts in the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“RODK”). The court also ordered a further expert opinion.

The meeting scheduled with RODK for June 2010 did not take place because the daughters were ill. The next meeting took place on 20 September 2010. According to the expert opinion, the daughters were drawn into the parents’ conflict by their mother. Both daughters sought contact with their father and wished to visit him in his home. The experts recommended therapy involving both parents and children.

The opinions of RODK and of the court’s expert were submitted to the court on 22 October 2010 and 7 February 2011. Following the change of the presiding judge, a hearing date was set for 2 March 2011.

Subsequently, the applicant applied for a change of the access arrangements. On 9 March 2011 the court issued yet another interim contact order and ruled that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. outside their home. The court considered that there was an emotional bond between the applicant and his daughters and in order to preserve it, it was important that the contact take place outside the children’s home. The court further referred to the expert opinion of W.B., who confirmed that A. and J. had not demonstrated symptoms of being victims of sexual abuse. However, the mother refused to comply with this order and lodged an appeal. On 25 July 2011 the Warsaw Regional Court upheld the first-instance decision.

Subsequently, A.W. cancelled most of the visits on the grounds that the children had been away and from 10 September 2011 she refused all visits.

On 7 October 2011 A.W. applied for modification of the access arrangements. Her motion was dismissed by the Warsaw Mokotów District Court on 24 October 2011.

During a hearing held on 11 October 2011, A.W. again applied for a change of access arrangements. She agreed to respect the interim order of 9 March 2011, however she made a request to the court that the contact should take place in the presence of the children’s babysitter or a court-appointed guardian. During that hearing the court heard evidence from the expert W.B., who confirmed that he did not consider that A. and J. demonstrated behaviour typical of children who had been sexually abused. He based his opinion on an analysis of the court files and a VHS recording of the children’s interview.

On 16 December 2011 the Warsaw Mokotów District Court gave a final decision in the case. It ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place in the children’s home with the mother present and in the applicant’s home with the presence of a court-appointed guardian. The court considered that the applicant should be allowed to meet his daughters outside their home and without the mother’s presence since the girls needed contact with their father. However, the court also stressed that, because the applicant’s contact with his daughters had not been regular, he did not know much about them. The applicant appealed.

After February/March 2012, the applicant was again able to exercise his right of contact with his daughters on a weekly basis, every Saturday between 9 a.m. and 1 p.m. at A.W.’s home.

On 29 May 2012 the Warsaw Regional Court quashed the Warsaw District Court’s decision. The court held that the proceedings concerning the limitation of the applicant’s custody rights should not have been joined with the access proceedings. In addition, due to different requirements concerning the composition of the court in both cases, the District Court had sat in an incorrect formation and the proceedings were null and void.

At a hearing held on 30 November 2012 both the applicant and A.W. testified. The applicant submitted that after their separation in 2005 the contact with his children had been irregular. In September 2007 A.W. (who is an actress) had participated in a live TV show and the girls had stayed at the applicant’s home every Saturday and had been collected by their mother on Sunday morning. Once the TV shows were finished at the beginning of October 2007, the applicant had wished to continue this arrangement, however A.W. disagreed. Consequently he lodged his application with the District Court. He stressed that after the court had delivered its first interim order (see paragraph 9 above), many of the visits had not taken place since A.W. had been absent for the weekend. The applicant further submitted that the interim order of 9 March 2011 (see paragraph 20 above) had never been enforced because whenever he had come to collect the children either A.W. had not been at home or she had refused to open the door. Lastly, the applicant confirmed that between September 2011 and February 2012 he had not seen his children at all. Since March 2012 he had been visiting his daughters every Saturday for 4 hours at their home.

The children’s mother A.W. confirmed to the District Court that between 2005 and September 2007 she had allowed the applicant to contact their daughters on many occasions. However, after she discovered that the applicant might have abused her daughter A., she had prohibited all contact. The contact had restarted in January 2008. She had never complied with the order of 9 March 2011 since she had been concerned about her daughters’ wellbeing. She further informed the court that she was planning to move to Gdansk with the daughters and her new partner.

On 3 December 2012 the Warsaw District Court gave its decision. The court ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place outside the children’s home and without the presence of their mother. In addition, he could spend Christmas with them every odd year and Easter every even year and also parts of the summer and winter holidays. However, the applicant was only allowed to visit his daughters between 10 a.m. and 4 p.m. and they were not allowed to stay overnight at his home.

Both parties appealed.

The applicant instituted proceedings for enforcement of the interim contact orders and made several applications for fines to be imposed on A.W. under Article 1051 of the Code of Civil Procedure.

On 23 November 2009 the applicant lodged a motion for the imposition of a fine on A.W. for failure to comply with the access arrangements as specified in the interim contact order of 10 June 2009.

On 17 May 2010 the Warsaw Mokotów District Court ordered A.W. to enforce the interim contact order of 27 February 2010 within 30 days, on pain of payment of a fine of 500 Polish zlotys (PLN). The court established that initially the contact had taken place regularly, but this had been in accordance with the terms of the previous interim contact order of 21 January 2008 (every other Saturday from 10 am to 2 pm instead of every Saturday from 9 am to 6 pm). Such an arrangement had resulted from the interpretation given to A.W. by the lawyers from the Ombudsman’s Office, who informed her that the new interim contact order would be effective only once it had become final. The court further observed that the contact had been regular; most of the visits were shortened or cancelled by the applicant and not by the mother. Lastly, the court ordered the mother to comply with the interim order of 27 February 2010.

On 24 August 2010 the applicant lodged a motion for imposition of a fine on A.W. He submitted that she had failed to comply with the order of 17 May 2010.

On 15 March 2011 the Warsaw Mokotów District Court discontinued the enforcement proceedings. The court held that the interim contact order had been modified in the meantime (on 9 March 2011) and there was therefore no need to deliver a decision in the present set of proceedings. The applicant appealed, asking the court to impose a fine on A.W. His appeal was dismissed by the Warsaw Regional Court on 11 August 2011. The court repeated the reasons given by the District Court and held that the interim order of 10 June 2009 had been replaced by a new interim order of 9 March 2011.

In November 2012 the applicant lodged a new motion for the imposition of a fine on A.W.

On 4 January 2013 the court imposed a fine on A.W.


Violation of Article 9 - Freedom of thought conscience and religion (Article 9 - Positive obligations;Article 9-1 - Freedom of conscience;Freedom of thought);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1988 and lives in Ikaria.

On 30 July 2007 the applicant, wishing to pursue a course of higher education, applied for and was granted permission to defer his enlistment for military service. On 24 September 2012 he interrupted the deferral. As a result, he was required to report to the recruitment centre on 23 January 2013.

On 22 January 2013 he applied for leave to perform alternative service on the grounds that he was a conscientious objector.

On 27 May 2013 he appeared before the armed forces’ special committee (established by section 62 of Law no. 3421/2005) to explain the nature of his conscientious objection. He stated that his objection was based on moral values stemming from the religious education he had received from his mother, a Jehovah’s Witness, and on his own approach to life, involving the rejection of anything linked to war, violence or destruction in all its forms. The following is an extract from his interview:

“Question: Tell us about your beliefs.

Answer: I grew up in a home where we were respectful of God. My mother is a Jehovah’s Witness. My father is an atheist. I believe that since God does not allow me to perform armed service in this world, I would be insulting him if I were to do so.

Question: So you are citing religious reasons to justify your refusal to perform armed service.

Answer: In substance, yes, but as I have not yet been baptised, I cannot provide you with a certificate from the Church of the Jehovah’s Witnesses. That is why I am also relying on moral grounds.

Question: Why have you not yet been baptised?

Answer: I still have some way to go. My behaviour is not yet completely suitable. I have decided to get baptised, but to do so I still need to make further progress and study the Scriptures and the Word of God in more detail.

Question: How have you come to the conclusion that God has nothing to do with war?

Answer: I have not drawn that conclusion, but if I do enlist and serve worldly power, I will find myself on the wrong side when God decides to take action.

Question: Do you think it is feasible to eradicate violence from this world?

Answer: It is hard to eradicate violence and armies by good will alone.

Question: Have you ever witnessed a violent incident, and if so, how did you react?

Answer: Yes, I was assaulted. I tried to keep my response to a minimum by immobilising the attacker.

Question: By reacting in that way, were you not using violence?

Answer: No, it was self-defence, and I do not think that self-defence involves the use of pure violence.

Question: So you acknowledge that there is a lawful authority and that some entities may potentially use force where necessary?

Answer: Yes, I acknowledge lawful authority. The law of mankind exists until the divine law arrives. I believe that people should submit to lawful authority. But there is a difference between submitting to it and becoming part of it.

Question: Are you a member of a non-violent organisation?

Answer: No; for me, religious reasons take priority over reasons linked to morals ...”

Only three of the five members of the special committee were present when it interviewed the applicant, namely two officers of the armed forces and an adviser of the State Legal Council. The other two members – two university professors specialising in psychology, philosophy or social sciences – were unable to attend and were not replaced.

On 27 May 2013 the special committee decided unanimously to propose that the applicant’s application be rejected. It found that the religious and ethical arguments he had put forward for being exempted from armed service were unsubstantiated. Firstly, he was not a member of the Jehovah’s Witnesses community, and secondly, he had not shown that he had taken part in non-violent movements; on the contrary, he had stated that self-defence was not a form of violence and that people should submit to lawful authority.

On 30 July 2013 the Minister of National Defence rejected the application on the grounds proposed by the special committee.

On 5 September 2013 the applicant applied to the Supreme Administrative Court for judicial review of the decision by the Minister of National Defence.

Firstly, he challenged the composition of the special committee that had adjudicated on his case, and complained in particular that the two university professors had been absent on that occasion. He submitted that as a result of their absence and the failure to replace them, the very nature of the committee had been distorted, since the military officers had formed a majority among the three members present. In the applicant’s view, the officers were inherently ill-disposed towards conscientious objectors and did not have the expertise in philosophy and psychology to make an objective assessment of the grounds put forward by them.

Secondly, the applicant argued that the Minister’s decision had not contained sufficient reasons, seeing that (a) it had incorrectly mentioned that he had cited religious grounds without being an adherent of a religion; and (b) the members of the committee had displayed prejudice by asserting that conscientious objectors had to be activists and anti-authority or to publicise their views, whereas the law did not lay down any such conditions.

Thirdly, the applicant complained of an infringement of his right to conscientious objection, arguing that the mere assertion of that right, coupled with his behaviour in practice (not possessing a firearms licence or having any convictions for offences involving violence), was sufficient to justify his application for exemption from armed service.

In judgment no. 1289/2014 of 7 April 2014 the Supreme Administrative Court dismissed the applicant’s application.

In response to his first argument, it noted that the members of the committee sat on an equal basis and that the absence of two of the members therefore had no effect on the quorum and did not distort the nature of the committee.

With regard to his second argument, the Supreme Administrative Court explained that, after examining whether the applicant was a follower of a religion that prohibited the use of force, whether he had taken part in non-violent movements and whether his philosophy of life prevented him from handling weapons, the committee had concluded that his conscientious objection was not accompanied by corresponding behaviour. It also dismissed his argument that opponents to the use of violence who did not publicly identify themselves as such were victims of discrimination, holding that the law required clear proof of their beliefs and that, moreover, the fact of not falling within the exceptions provided for by law was insufficient.

As to the third argument, the Supreme Administrative Court held that neither international instruments nor domestic legislation established a right to be exempted from armed service simply by citing conscientious objection. Such an exemption had to be subject to the conditions laid down by law, including the submission of sound and convincing reasons to justify it. It added that conscientious objection could not be established on the basis of a simple declaration, and nor could it be inferred from negative facts, such as not having any convictions for assault and not possessing weapons. On the contrary, it was necessary to provide evidence of active behaviour over a certain period, but the applicant had failed to do so.

On 19 May 2014 the applicant was ordered to pay a fine of 6,000 euros (EUR) for insubordination; with interest for late payment, the amount was increased to EUR 7,940.85. On 11 July 2014 the applicant applied to the Mytilene Administrative Court to have the fine set aside. The case is still pending, but the authorities have seized a sum from his bank account.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

On 28 April 1993 the applicant rented a municipally-owned shop in the town of Primorsko. The shop consisted of a metal structure built on a concrete foundation on a municipally-owned plot of land.

On 18 September 1995 the applicant asked Tsarevo Municipal Council to be allowed to purchase the shop under the preferential privatisation procedure for tenants of State and municipally-owned property, as provided for in section 35(1) of the Transformation and Privatisation of State and Municipally-Owned Enterprises Act (Закон за преобразуване и приватизация на държавни и общински предприятия – hereinafter “the Privatisation Act”). She also expressed the wish to buy the plot of land on which the shop was built. As the municipal council did not reply, the applicant applied for judicial review of the municipality’s tacit refusal to sell the shop to her. The first-instance court rejected that application on 31 March 2003.

In a final judgment of 4 November 2003, rectified for errors in October 2004, the Supreme Administrative Court quashed the lower court’s judgment, finding that it had not dealt with all the evidence submitted by the applicant. The last-instance court then observed that the parties were in agreement that, at the time of her privatisation request, the applicant had had a valid rent contract for the shop with the municipal authorities. It further found, on the basis of the submitted evidence, that the shop constituted a separate property unit measuring 140 square metres and that all statutory conditions for privatising the shop under the preferential privatisation procedure had been present. As to the land on which the shop was built, the court observed that it was not part of the rental contract and thus its inclusion in the privatisation of the shop was a matter of discretion for the municipal authorities. The court referred the case back to Tsarevo Municipal Council with instructions for it to open a privatisation procedure by offering to sell the shop to the applicant.

In 2004 the applicant again asked Tsarevo Municipal Council to examine her privatisation proposal. As she did not receive a reply, she applied for judicial review of its tacit refusal to sell the shop to her.

In a final judgment of 28 November 2005, the Supreme Administrative Court held that the applicant met the conditions for the privatisation of the shop. The court specified that, following changes to the country’s administrative map, the privatisation decision had to be taken by Primorsko Municipal Council and it referred the case back to it.

On 25 November 2005 and later again on 30 October 2006, Primorsko Municipal Council explicitly refused to sell the shop to the applicant. She brought judicial review proceedings in respect of those refusals.

In a final judgment of 31 March 2008 the Supreme Administrative Court revoked the refusals as null and void, finding that the municipal council had been obliged to sell the shop to the applicant. The court briefly noted that, whatever the circumstances, no proof had been presented to it by the municipal council in support of its objection that the shop no longer physically existed.

In the meantime, in March and April 1996, the municipal company managing the shop informed the applicant that she had no lease contract for 1996 and invited her to vacate the premises. On an unknown date in 1997, that company lodged a rei vindicatio claim against the applicant. In a final judgment of 3 July 2002, the Supreme Court of Cassation dismissed the company’s claim, holding that the applicant’s lease contract could not be terminated pending the privatisation procedure pursued by her.

On 16 February 1999 the mayor of Primorsko (hereinafter “the mayor”) ordered the municipal company to demolish the shop. Following a complaint lodged by the applicant with the Governor of the Burgas Region, the latter revoked the mayor’s order on 18 April 2000, finding that the mayor had not been competent to dispose of municipal property without a prior decision of the municipal council to that effect. The Governor further stated that, pending the privatisation procedure, the lease contract with the applicant could not be terminated.

On an unknown date in 1999, the municipal company sold the shop to a private company. On 12 May 1999 the buyer, assisted by municipal employees, prevented the applicant from entering the shop. Following a complaint lodged by the applicant with the prosecutor, on 27 May 1999 the latter established that the buyer had acted in an abusive manner and ordered the police to assist the applicant in regaining possession of the shop. According to the applicant, after she had re-entered the property she discovered that the electricity supply had been cut off. It appears that she ran the shop without electricity until an unspecified date in 2001, when the electricity supply was restored.

In 2000 the buyer brought a rei vindicatio claim in court against the applicant. In a final judgment of 14 October 2003, the Supreme Court of Cassation dismissed that claim, confirming the reasoning in the lower court’s judgment. The last-instance court found in particular that the buyer had not acquired ownership of the shop and that, in any event, the applicant was protected by the Privatisation Act in that she could not be evicted from the shop pending the examination of her privatisation proposal.

Primorsko Municipal Council considered that the shop was dilapidated and unsafe on account of the corrosion of its metal structure and ordered its sale for demolition. At some point in 2005 the municipal council sold the shop to an individual and on 14 February 2006 the mayor ordered the new buyer to demolish the shop. Even though on the following day, 15 February 2006, the mayor revoked his own order, the buyer dismantled the shop on 18 February 2006 with the assistance of the police. The applicant was informed of the demolition by an acquaintance who happened to pass by the shop on the day it was pulled down. She had not known about the sale of the shop before it was demolished.

The parties dispute what happened to the applicant’s goods and belongings. According to the Government, they were listed and taken for safekeeping. According to the applicant, they were destroyed together with the shop.

In 2006 the applicant requested that criminal proceedings be opened against the mayor and the chairperson of Primorsko Municipal Council for breach of duties and obstruction of the enforcement of a final court judgment. In a decision of February 2007 the prosecutor refused her request. He found that it was impossible to open criminal proceedings as the refusals to privatise the shop had been issued by the municipal council, a collective body, whereas criminal responsibility was personal.

On 18 October 2006 and 22 May 2008 respectively the applicant again requested Primorsko Municipal Council to examine her privatisation proposal. In a letter of 10 September 2008 the council informed her that her case was factually and legally complex, and that an ad hoc commission would be formed to propose a solution. On 20 January 2009 the ad hoc commission proposed that an enquiry be made with the Privatisation Agency (the State body in charge of the privatisation of State-owned property). In two letters dated 5 March 2009, sent respectively to the applicant and the municipality, the Privatisation Agency observed that the question about the demolition of the shop had not been raised in the proceedings before the courts. The Agency nonetheless held that the municipality was obliged to comply with court judgments.

In February 2011, the applicant lodged a claim with the Burgas Administrative Court for damages against the Primorsko municipal authorities for their failure to implement the final judgments in her favour. The claim was lodged under the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”). The court split the claim to be examined into two separate sets of proceedings – the first one against the municipality (община) and the second one against the municipal council (общински съвет).

In the first set of proceedings, in which she challenged the mayor’s order of 14 February 2006 that the shop be demolished (see paragraph 16 above), the applicant sought damages for loss of opportunity (пропуснати ползи). The Burgas Administrative Court found that the applicant had no standing to pursue this claim because she had not been the addressee of the mayor’s order. Although the shop had been demolished shortly after the order had been issued, that had been irrelevant in respect of the legal proceedings brought by the applicant, given that she had sought compensation for damage specifically stemming from the mayor’s order. The court dismissed the applicant’s claim and terminated the proceedings. That ruling was upheld by the Supreme Administrative Court in a final decision of 17 October 2011.

In the second set of proceedings the applicant sought both pecuniary and non-pecuniary damages stemming from the failure of the municipal council to decide on her privatisation request by implementing the final court judgments ordering it to offer to sell the shop to her.

She specified that she sought pecuniary damages in respect of: the rent she had had to pay between January 1998, when her request to privatise the shop should have been granted, and February 2006, when the shop had been demolished; those of her belongings that had been destroyed together with the shop; the loss of income resulting from the impossibility of collecting rent from a company with which she had concluded a contract on 17 January 2006 in respect of part of the shop; and the impossibility of increasing her investment by buying the plot on which the shop stood and by building upon it.

In addition, the applicant sought non-pecuniary damages in respect of the intense stress and emotional suffering that had led her to fall into a lasting and severe depression, which had been the result of the shop’s demolition and of the failure of the municipal council to sell it to her, despite the final judgments. She provided medical records in respect of her failing health and the related hospital treatment she had undergone.

Examining the applicant’s claim, the Burgas Administrative Court considered that she was complaining of the municipal council’s tacit refusal to reply to her request of 23 May 2008 to buy the shop. On 3 January 2014 the court found that both claims, for pecuniary and non-pecuniary damages, were admissible.

As to the merits, the court held that the claim for pecuniary damages was unjustified and also that there was no causal link between the municipal council’s refusal to privatise the shop and the applicant’s claims for loss of financial opportunity as a result of the impossibility of buying the land and building on it.

As regards the applicant’s claim for non-pecuniary damages, the court accepted it as justified on the basis of the evidence submitted during the proceedings (see paragraph 24 above). In particular it found that it had been demonstrated that the applicant had suffered significantly as a result of the municipal council’s refusal to open a privatisation procedure vis-à-vis her. The court held that the applicant’s suffering had been caused by the municipal council’s tacit refusal to act upon the final court judgment of 2008. The applicant had succumbed to depression, which had manifested itself in acute feelings of hopelessness and a perception that any future efforts would be futile, as well as in feelings of helplessness, insomnia, a disturbance of memory functions, and attention disorder. Those conditions had further led to a serious deterioration in the applicant’s family environment, given that she had directed all her frustration and negative emotions towards her young daughter. The court awarded the applicant the entirety of her claim, namely about 20,000 euros (EUR), plus interest, as well about EUR 6,500 for costs and expenses. It further declared null and void the municipality’s tacit refusal to act upon her request of 23 May 2008, and returned the case to it for it to take the appropriate action.

After an appeal lodged by the municipal council, the Supreme Administrative Court found that the lower court had wrongly concluded that the municipal council’s silence amounted to a new tacit refusal to privatise the shop. The applicant was seeking damages stemming from the absence of a privatisation procedure launched by the municipality in respect of the shop. The administrative procedure concerning the privatisation of the shop had begun with the applicant’s initial request of 18 September 1995 (see paragraph 6 above) and had not been completed. The applicant’s subsequent requests to the same effect had not created a new obligation on the part of the municipality concerning the privatisation of the same shop.

The last-instance court further held that, as regards the first final court decision in the applicant’s favour (that of 4 November 2003) it had not created obligations on the part of Primorsko Municipal Council, given that the respondent party required to act under that decision had been the Tsarevo municipality (see paragraph 7 above). Primorsko Municipal Council had only been expected to act in respect of the second final judgment on that question (see paragraph 9 above).

As regards the municipal authorities’ explicit written refusal of 25 November 2005 to open a privatisation procedure (see paragraph 10 above), the court noted that that refusal had been declared null and void in 2008 by another of its benches for being contrary to the first final court decision of 2003 (see paragraph 11 above).

The last-instance court conceded that, objectively, the declaration of the municipal council’s refusal as null and void corresponded to one of the statutory prerequisites for the pecuniary liability of the council. However, the remaining conditions for the council being held so liable had not been met. In particular, the court held – without elaborating further – that the applicant had failed to prove both the existence of actual damage and the causal link of any such damage to the municipal council’s refusal to privatise the shop by offering to sell it to her.

Furthermore, the applicant’s claim in respect of the council’s refusal of 25 November 2005 had been inadmissible on account of the expiry of the five-year limitation period, as calculated as of the date of that refusal. Moreover, the council tacit refusal to act upon the 31 March 2008 court decision was of no consequence, given that the shop had no longer physically existed at that time.

Importantly, the obligation on the municipal authorities to privatise property under the Privatisation Act existed only vis-à-vis individuals who met the conditions stipulated under that Act. The applicant, however, was not among those persons. The reason was that she had not had a valid contract with the municipality at any of the times when she had requested the latter to sell the shop to her, because the contract concluded in 1993 had expired prior to those times.

Moreover, as a matter of principle, the liability of a municipality, or of the State for that matter, under the SMRDA did not include loss of opportunity but only already incurred losses. Consequently, the applicant could not claim loss of opportunity in these proceedings.

In respect of the applicant’s claim for non-pecuniary damages, the court emphasised that these could only be incurred by an individual and not by an enterprise. It was true that in legal terms the sole trader was a physical, as opposed to a legal, person; however, the damage suffered by the applicant stemmed specifically from the economic activity carried out by her in her capacity as a sole trader. Consequently, the applicant as an individual was not entitled to compensation for damage that could have been sustained in the context of the economic activity of the trader. In view of the above, the lower court had wrongly granted the applicant’s claim for non-pecuniary damages.

On the basis of the above, the Supreme Administrative Court quashed the lower court’s judgment and dismissed the applicant’s claims in a final judgment on 3 December 2014. It also held that the applicant had to pay to the municipal council about EUR 4,000 for legal costs and expenses.

On 5 January 2015 the applicant asked the Supreme Administrative Court to rectify its judgment of 3 December 2014 in the part in which it had ordered her to pay the legal costs claimed by the other party (the municipal council). She pointed out that the municipal council had not presented proof that it had indeed incurred those expenses and that, in any event, the council should not be allowed to benefit from its unlawful failure to implement the judgments in her favour. The applicant sought, alternatively, a reduction in those costs.

The Supreme Administrative Court found her request admissible but rejected it as unjustified (неоснователна) in a final decision of 2 June 2015. On 25 November 2015 the bailiff invited the applicant to voluntarily comply with the final judgment of 3 December 2014, indicating that failure to pay the sum due would result in the forced sale of items of the applicant’s personal movable and immovable property.


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

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1942 and lives in Tomaszów Mazowiecki.

On 29 September 2010 at a village meeting in Jadwigów, fifteen residents voted in favour of holding the previous local mayor (sołtys) Z.M. to account for his management of public funds. They appointed the applicant to be in charge of further action in that regard.

On 7 October 2010 the applicant sent a document to the mayor of the Tomaszów Mazowiecki District (Starosta Powiatowy - “the district mayor”) entitled “Petition” (Wniosek - “the document”), which was signed by the applicant and three other residents of Jadwigów who confirmed their agreement with the petition.

The text read as follows:

“On 27 September in the village of Jadwigów a legally valid village meeting took place, during which residents of the village decided by a large majority to appoint me to be in charge of investigating the concerns detailed below. It took me over one week to figure out a solution to this problem. I came to the realisation that the best way to approach [it] would be to file a request with the Mayor of the District in order to clarify the issue, even though I had already informed the current local mayor and Mayor of the Tomaszów Mazowiecki Commune (wójt) of the allegations.

The facts and circumstances are as follows.

The local mayor of Jadwigów, Z.M., whose term in office was concluded on the election of the current local mayor, Ms J. G., received grants for the benefit of the village from the Commune and accepted payments from the lease of the village shop.

During his term in office, he never asked the residents or the local council for what purpose the money should be used. He managed the funds arbitrarily and, I think, used them for building works, namely the renovation of the community hall (świetlica – dom ludowy).

However, he never shared the accounts with the residents of the village; in particular how much money there was and what it was spent on.

There are many rumours going around the village, which out of respect for your office I will not be repeating. I will only add one more thing, namely that the community hall was not accessible to the residents and their children for [ten] years.

I consider, therefore, that the petition and the request are both valid.

[signatures of three residents]

I, other signatories of this request for a petition and all the residents believe that, thanks to the Mayor of the District, they will receive a full and plausible explanation of the facts described above.”

The document was sent to the district mayor before local elections which took place on 21 November 2010 (wybory samorządowe). Both the applicant and Z.M. were candidates in those elections but neither of them became a local councillor.

On an unspecified date the Tomaszów Mazowiecki Commune Council Audit Committee analysed the document. It decided, as summarised by the domestic court, “that there were no grounds to allege that somebody had mismanaged the funds.”

On 14 December 2010 Z.M. lodged a civil action with the Piotrków Trybunalski Regional Court (“the Regional Court”) against the applicant for infringement of his personal rights. He requested that the court order the applicant to publish an apology in the local weekly newspaper and pay 4,000 Polish zlotys (PLN) to the Voluntary Fire Brigade (Ochotnicza Straż Pożarna – “the VFB”).

On 31 May 2011 the Regional Court decided that the applicant had violated Z.M.’s personal rights and ordered that he send a statement by post to the district mayor, the Tomaszów Mazowiecki Commune Office (Urząd Gminy w Tomaszowie Mazowieckim) and Z.M. stating:

“I, Jarsosław Kość, apologise to [Z.M.] for violating his reputation by forwarding to the Mayor of Tomaszów District a document on [7 October] 2010 entitled “Petition”, which contained false allegations that the local mayor, Z.M., arbitrarily managed funds for the benefit of the village; that he took, as local mayor, the payments under the lease of the village shop; and a statement that the community hall had not been available to the residents for the past [ten] years.”

In the course of the proceedings the court examined a statement made at the village meeting on 10 February 2011 at which six residents of Jadwigów confirmed that they had all been instigators of the enquiry in October 2010 which had resulted in the applicant’s document to the district mayor. The residents explained that their intention had been to clarify the questions raised, given Z.M.’s involvement in matters such as the community hall refurbishment and running of the VFB.

The court considered that the applicant’s letter from 7 October 2010 contained false information, which supported the finding of a violation of Z.M’s personal rights. This included statements claiming that Z.M., acting in his capacity as local mayor, had taken rent from the lease of the village shop. The domestic court established that even if Z.M. had taken any payments, he had done so as chairman of the VFB. The court also found that the village shop was located in the building owned by the VFB, which also hosted the community hall, and that the rent under the lease was paid to the VFB through an intermediary, its treasurer. Z.M., as chairman of the VFB, merely set the amount of rent to be paid each year. The court also found that during Z.M.’s time in office, the community hall had been open for public use; in that respect it dismissed the testimony of some witnesses stating the opposite. At the time, there were also building works being carried out in the same building. It was established that nobody, and this included Z.M., had received any money in cash for the work. It was also established that the village had not received any funds directly from the commune. The commune had paid the costs of the renovations of the VFB’s building.

The court considered that since the applicant had failed to prove the veracity of his accusations and, given their adverse effect, this amounted to a violation of Z.M.’s personal rights.

On 12 July 2011 the applicant lodged an appeal with the Łódź Court of Appeal, alleging that the court had not considered that the relevant text had been communicated in the public interest.

On 4 November 2011 the Łódź Court of Appeal dismissed the applicant’s appeal, emphasising that the publishing of false information would result in a violation of a person’s personal rights. It rejected the applicant’s claim that the petition was merely an expression of doubt concerning the lawfulness of Z.M.’s actions when he was local mayor. The court considered that the timing of the applicant’s actions proved that they had not served the public interest and had been motivated by his desire to win the elections. He had raised his concerns almost three years after the end of Z.M.’s mandate during the electoral campaign which Z.M. had lost. The applicant received a copy of the judgment on 15 December 2011.

On 1 March 2012 the Regional Court issued a writ of enforcement in respect of its final judgment of 31 May 2011. The applicant instituted proceedings to have the enforcement order quashed on the grounds that he had a case pending before the European Court of Human Rights. On 21 September 2012 the Piotrków Trybunalski Regional Court dismissed his claim. On 18 October 2012 the applicant lodged an appeal against the latter judgment. On 7 November 2013 it was dismissed by the Piotrków Trybunalski Court of Appeal.

On 21 January 2011 the applicant was elected mayor of Jadwigów.


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

The applicant was born in 1950 and lives in Podgorica.

On 6 September 2003 the applicant lodged an application with the Commission for Restitution (Komisija za restituciju nepokretnosti) in Berane requesting restitution of the property expropriated from his father in 1969.

Following the adoption of a new Restitution Act (Zakon o povraćaju oduzetih imovinskih prava i obeštećenju), on 28 December 2005, the applicant submitted another application to the newly established Commission for Restitution and Compensation in Berane (Komisija za povraćaj oduzetih imovinskih prava i obeštećenja) requesting compensation.

In 2008 all the Commissions for Restitution and Compensation were consolidated into three regional Commissions in Bar, Bijelo Polje and Podgorica. Due to the location of the expropriated property, the applicant’s request was assigned to the Commission with its seat in Bijelo Polje (hereinafter “the Commission”).

On 19 February 2009 the applicant sought opinion from an independent expert regarding the expropriated property.

On 21 July 2009 the Commission also requested an assessment report on the expropriated property. The report was submitted to the Commission on 24 July 2009.

Due to Commission’s inactivity, on 4 September 2009 the applicant lodged an appeal (žalba zbog ćutanja uprave) with the Appeals Commission (Komisija za žalbe u postupku za povraćaj imovinskog prava ili obeštećenja).

On 23 October 2009 and 5 December 2013 the applicant filed complaints with the Ministry of Finance and the Administrative Court, respectively, about the Appeals Commission’s inactivity.

On 24 December 2013 the Appeals Commission ordered the Commission to decide on the applicant’s request within a period of 30 days.

On 13 October 2014 the Commission ruled against the applicant.

On 23 December 2014 the Appeals Commission upheld that decision on appeal.

The applicant filed and action with the Administrative Court seeking redress.

On 17 April 2015 the Administrative Court rejected the applicant’s claim as unfounded. This decision was served on the applicant on 23 April 2015.

On 23 June 2015 the applicant lodged a constitutional appeal. On 24 July 2015 the Constitutional Court rejected his appeal for failure to make proper use of other available domestic remedies. According to the Constitutional Court, the applicant should first have made use of an additional request for the judicial review of his case (zahtjev za vanredno preispitivanje sudske odluke).


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1954 and lives in Rosengarten. He is a musician and an artistic producer.

In autumn 2003 the applicant published a book entitled “Backstage” (Hinter den Kulissen). A number of passages in the book had to be redacted because of a series of urgent judicial proceedings which had been brought against him.

On 27 October 2003 a tobacco company, British American Tobacco (Germany) GmbH (“the company”), launched an advertisement showing two packets of Lucky Strike cigarettes in the foreground. There was a lit cigarette on top of one of the packets, with a thick black marker pen leaning against the other packet. The following text appeared at the top of the advertisement in large lettering:

“Look, dear Dieter, how easy it is to write super books.” (“Schau mal, lieber Dieter, so einfach schreibt man super Bücher.”)

The words “dear” (“lieber”), “easy” (“einfach”) and “super” (“super”) were blacked out but were still legible. At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“Lucky Strike. Sonst nichts.”)

The full-page advertisement was published in the 17 October 2003 issues of the weekly magazine Der Spiegel and the popular national daily newspaper Bild, with a circulation of 1.42 million and 4.67 million respectively. It was part of an advertising campaign run by the company for the Lucky Strike brand; the campaign, launched in 1989, ran until September 2004 with more than 500 variants, showing one or more packets of cigarettes with a humorous slogan which often referred to a current event and the individual involved in that event.

At the applicant’s request the company gave a written undertaking to refrain from further publication of the advertisement in question with its heading referring to him, but refused to pay him the sum of 70,000 euros (EUR) which he had demanded for a “notional licence” (fiktive Lizenz).

The applicant applied to the Hamburg Regional Court for an order requiring the company to pay him EUR 100,000 for a notional licence.

On 3 September 2004 the Regional Court allowed the applicant’s application. It first of all noted that the use of the forename Dieter in the impugned advertisement was clearly a reference to the applicant’s name. It further noted that although the forename Dieter was very common and several well-known public figures shared it, the advertisement was obviously referring to the applicant in view of its other component elements. The Regional Court observed that the company’s advertising campaign regularly alluded to current events and the persons involved in them. It noted that there was no indication that at the time the advertisement had been published, another individual also called Dieter, like the applicant, had published a book that had had certain passages censored following court injunctions, or that any other book had prompted as much public debate upon publication as the applicant’s book had.

The Regional Court added that the company was entitled to rely on the right to freedom of expression as safeguarded by Article 5 § 1 of the Basic Law (see “Relevant domestic law and practice” below), a right that also extended to commercial advertising provided that its content contributed to shaping public opinion. In the court’s view, that applied to the impugned advertisement, which had commented humorously on the publication of the applicant’s book and had apparently advised him on how to write “super books” by striking through certain passages before publication. Given that the company had in this way called for the contents of a book to be properly checked prior to publication, the advertisement had, in the Regional Court’s view, raised a matter of public interest.

The Regional Court then pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under the Basic Law and that, in principle, they deserved equal respect. Where a person was used for advertising purposes without his or her consent, the right to protection of personality rights prevailed as a general rule. As everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes, personality rights protected individuals against the unlawful use by third parties of their names in the context of advertising. Inasmuch as the company had argued that the applicant had himself caused the event to which the advertisement referred, that fact was not capable of depriving the applicant of protection, but it could result in a lesser degree of interference and a higher level of protection of freedom of expression.

The Regional Court held that when balancing the competing interests in the case, more weight was to be attached to the protection of the applicant’s personality rights than to the company’s right to freedom of expression. It noted in particular that the advertisement had primarily pursued commercial aims, that is to say increasing the sales of a cigarette brand, and that it had above all been intended to entertain the public, without providing any real contribution to shaping public opinion. Lastly, it noted that neither the content of the advertisement (Aussagegehalt) nor the applicant himself had any direct link with the product advertised. It concluded that the applicant was entitled to claim compensation for exploitation of his fame for commercial purposes, having regard, inter alia, to the judicial decisions given in cases concerning a tennis player (Boris Becker) and a politician (Oskar Lafontaine).

The Regional Court further held that the damage suffered by the applicant corresponded to what the company and the applicant would reasonably have agreed on as the cost of the licence if a contract had been signed. The purpose of a notional licence was to ensure that anyone using someone else’s personality without permission would not be in a more advantageous position than if he or she had obtained the person’s consent. The Regional Court explained that the cost of such a licence should be freely determined on the basis of all the relevant circumstances, including the following criteria: the person’s fame and brand image (Imagewert), the attention attracted by the advertisement, the extent of its distribution and the role assigned to the person in the advertisement. Applying those criteria and taking account of the amounts awarded in similar cases concerning persons as well known as the applicant had been at the time of publication of the advertisement relating to them (see paragraph 14 above), the Regional Court considered it appropriate to award the applicant EUR 100,000. To that end it took into consideration the fact that the advertisement mocking the applicant had taken up a full page in publications such as Der Spiegel magazine, and had been seen by more than six million readers. However, it also had regard to the fact that the advertisement had included neither a picture of the applicant nor his surname, so that a number of people would have been unable to make a connection between the advertisement and the applicant.

On 29 November 2005 the Hamburg Court of Appeal upheld the findings of the Regional Court as to the existence of unlawful interference and the outcome of the balancing exercise between the competing rights, while pointing out that the fact that the company had used the applicant’s forename for commercial purposes, in order to increase sales of its cigarettes, meant that the protection of the applicant’s personality rights prevailed from the outset. However, it reduced the fee to be paid for the notional licence in accordance with the principle of unjust enrichment to EUR 35,000. The advertisement had not been designed to debase the applicant and, on account of its humorous approach had not had any negative impact on him. Moreover, in publishing his book the applicant had deliberately sought the limelight. The Court of Appeal concluded that there had been an unlawful interference with the applicant’s right to protection of his personality rights, adding that no other conclusion could be reached from the standpoint of the right to freedom of expression in artistic matters, on which the company had relied.

As regards pecuniary damage, the Court of Appeal noted that the peculiar aspect of the case was that the impugned advertisement had, in a humorous manner, used only part of the applicant’s name without his consent, and that it had only been published once in two periodicals. Endorsing the findings of the expert whom it had commissioned to assess the damage suffered by the applicant, it deemed it appropriate to set the amount of damages at EUR 35,000.

The Court of Appeal did not grant leave to appeal on points of law, holding that the case was not of fundamental importance, given that a decision was not required from the Federal Court of Justice in the interests of either the development of the law or consistency in its application.

The company applied for leave to appeal on points of law. On 26 October 2006 the Federal Court of Justice granted the application.

In a judgment of 5 June 2008 (no. I ZR 223/05) the Federal Court of Justice quashed the Court of Appeal’s judgment. It held that the applicant’s claim was ill-founded because the company had not unlawfully interfered with his right to protection of personality rights or his right to his name, given that the use of his name in the impugned advertisement was covered by freedom of expression as guaranteed by Article 5 § 1 of the Basic Law. While upholding the findings of the Court of Appeal as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment, the Federal Court of Justice held that the Court of Appeal had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one’s name were only protected by ordinary law, whereas freedom of expression enjoyed protection under constitutional law.

The Federal Court of Justice explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon, since no infringement of the non-pecuniary components of those rights had been alleged. It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by the Basic Law to the extent that they protected non-pecuniary interests, but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression. The Federal Court also observed that the protection conferred by Article 5 § 1 of the Basic Law also covered advertising whose content contributed to shaping public opinion, while specifying that that was not only the case where the advertisement referred to a political or historical event, but also where it dealt with questions of general interest. Furthermore, reports with an entertainment purpose could also play a role in shaping public opinion, or indeed, in certain circumstances, could stimulate or influence the shaping of public opinion more effectively than strictly factual information.

The Federal Court of Justice noted that the impugned advertisement referred humorously to the fact that the applicant had published a book. It considered that even though the company had merely referred to that event as part of an advertising campaign, it could still rely upon the specific protection of freedom of expression. It held that the fact that the advertisement – by using the applicant’s forename and alluding to the book which he had published – had been mainly intended to increase sales of a cigarette brand by capturing the attention of the general public did not mean, as the Court of Appeal had maintained, that the right to protection of personality rights prevailed in general.

The Federal Court of Justice continued as follows:

“In weighing up the competing interests the Court of Appeal failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights, such protection being based solely on civil law and not constitutional law. In the case of interference with the pecuniary components of the right to protection of personality rights because a well-known person’s name has been used in an advertisement without his consent, it cannot simply (ohne weiteres) be maintained that the person’s right to protection of his personality rights will always prevail over the advertiser’s right to freedom of expression. On the contrary, it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person’s name if, on the one hand, the advertisement alludes in a derisive, satirical manner to an event involving the person and forming the subject of public debate and if, on the other hand, it does not exploit the person’s brand image (Imagewert) or advertising value (Werbewert) by using his name, and if it does not give the impression that the person identifies with the product advertised or advocates its use (reference to the Federal Court of Justice judgment of 26 October 2006, no. I ZR 182/04).”

The Federal Court of Justice held that the impugned advertisement had not given such an impression. It had concerned a subject of public interest in so far as it referred in a humorous fashion to the events surrounding the publication of the applicant’s book, shortly after that event and in the context of the ensuing debate in the media. The advertisement had therefore been part of the ongoing public debate on the circumstances surrounding the applicant’s publication of his book. The Federal Court of Justice emphasised that above and beyond the derisive, satirical allusion to that event, which was already known to the public, the advertisement had been devoid of any degrading or negative content in relation to the applicant. Furthermore, given the absence of any suggestion that the applicant identified in any way with the product advertised, there were no grounds for considering that the advertisement was disparaging towards the applicant simply because it was promoting a brand of cigarettes.

The Federal Court of Justice agreed, moreover, with the Court of Appeal that the applicant had sought public attention for his own publicity needs. It found that the applicant’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company’s freedom of expression. There were therefore no grounds for examining whether the company could also have relied on the right to freedom of expression in the artistic field.

The Federal Court of Justice concluded that in the absence of a violation of the pecuniary components of his right to protection of his personality rights, the applicant could not claim an entitlement to a notional licence.

On 7 April 2009 the Federal Constitutional Court declined to accept for adjudication a constitutional appeal by the applicant (no. 1 BvR 3143/08), adding that no reasons would be given for its decision. The applicant received the decision on 24 April 2009.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). Part of the Zdjelar family – father Milan, mother Anđelija, daughter Dragica (the third applicant) and sons Janko (the first applicant), Slavko (the eighth applicant) and Čedo (the ninth applicant) – lived in Crni Potok, a village situated in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military operation with the aim of regaining control over the Krajina. The operation was codenamed Storm and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

On 11 October 2001, one S.K. submitted to the State Attorney’s Office (Državno odvjetništvo Republike Hrvatske, hereinafter the “SAO”) a list of persons killed during and after Operation Storm. Milan Zdjelar, the applicants’ father, was on the list and next to his name was a note that he had been shot in the head and a leg on 8 August 1995 by members of the Croatian Army’s “Tigers” brigade. On 16 October the SAO forwarded that list to the Ministry of the Interior.

On 25 October 2001 the Gvozd police photographed the site of Milan Zdjelar’s grave.

On 29 October 2001 the Gvozd police interviewed Dragica Zdjelar, the third applicant, who said that her father had been killed on 8 August 1995 in Crni Potok.

On an unspecified date in 2002 the body of Milan Zdjelar was exhumed and a post mortem was carried out in the Zagreb Šalata Hospital on 20 September 2002. The cause of death was not established and the only injury noted was a broken collar bone.

On 23 March 2004 the Gvozd police again interviewed Dragica Zdjelar. She said that of her family members, only she and her father had remained in Crni Potok after the beginning of Operation Storm. On 8 August 1995 at about 12.50 p.m. she had been sitting with her father Milan in front of their house, situated on a hill in Crni Potok, about a hundred metres away from the unpaved main road. A military transport vehicle had appeared on that road, coming from the direction of the village of Gojkovac. When it drew level with their house the vehicle had stopped and three soldiers, dressed in camouflage uniforms, had got out and started to walk towards her and her father. Her father had then said that he did not wish to wait for the soldiers but would run into the woods. When he started to run, she had followed him and then heard three gunshots. She had hidden in the grass and had seen her father shot twice, in the chest and the leg. He had died soon afterwards. The soldiers had returned to the vehicle and continued in the direction of Topusko. The soldiers who had killed her father had been from the “Tigers” brigade. She had hidden in the woods for two days while her father lay dead in the grass. When she returned from the woods she had reported the matter to the Croatian Army and had been given food by some soldiers, who had also buried her father.

On 24 March 2004 the Gvozd police interviewed Anđelija Zdjelar, who had no relevant information to give them about the circumstances in which her husband had been killed.

On 9 April 2004 the Sisačko-moslavačka Police Department (Policijska uprava sisačko-moslavačka) sent a report to the Sisak County State Attorney (Županijski državni odvjetnik Sisak) stating that Dragica Zdjelar had alleged that on 8 August 1995 her father Milan Zdjelar had been killed by Croatian soldiers, members of the “Tigers” brigade.

On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Offices, which were instructed to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to instigate criminal proceedings.

On 26 September 2005 the applicants and their mother lodged a criminal complaint with the SAO in connection with the killing of Milan Zdjelar, classifying the offence as a war crime against a civilian and alleging that the victim had been of Serbian ethnic origin, unarmed and never involved in any military activity during the war in Croatia.

On 29 September 2005 the SAO referred the case to the Sisak County State Attorney’s Office, requesting an investigation into the killing of Milan Zdjelar.

Between October 2005 and February 2007 the State Attorney’s Office asked the police about the progress of the investigation on several occasions. Each time the police replied that there had been no progress.

On an unspecified date the police asked the Military Police Administration (Uprava Vojne Policije, hereinafter the “MOP”) for information about the killing of Milan Zdjelar. On 7 February 2007 the MOP answered that they had no relevant information. This was forwarded to the Sisak State Attorney’s Office on 13 February 2007.

On several occasions between September 2007 and July 2008 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress.

On 9 October 2008 the State Attorney’s Office issued an instruction for implementation of the Criminal Code and the Code of Criminal Procedure to the County State Attorney’s Offices, in which they indicated that an inspection of the work of these Offices had highlighted two main problems: the possible partiality of persons involved in the pending proceedings as a result of the ethnicity of the victims or the perpetrators; and the problem of trials in absentia. The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and stressed the duties of those working for the State Attorney in that respect.

On 30 December 2008 the Sisak State Attorney’s Office asked the Investigation Department of the Sisak County Court to hear evidence from Dragica Zdjelar. This request was complied with on 25 March 2009, when an investigating judge of that court heard evidence from her. Dragica Zdjelar repeated her earlier statement.

On 11 May 2009 the police interviewed F.O. and F.K., both of whom were neighbours of the Zdjelar family in Crni Potok. F.K. confirmed that it had been soldiers from the Croatian Army who had come to the village when Milan Zdjelar had been killed. They had no other relevant information about possible perpetrators.

On 12 May 2009 the police informed the Sisak State Attorney’s Office that they had asked the Ministry of Defence for information regarding the members of brigade 153 of the Croatian Army who had arrived in Crni Potok after Operation Storm and the killing of Milan Zdjelar. On 20 July 2009 the Ministry of Defence informed the police that Milan Zdjelar had been buried by members of brigade 153 of the Croatian Army which had been under the command of a person named M., and provided a list of all members of that brigade with that name. One of them, M.Š., had already died.

Between 26 January and 3 February 2010 the police interviewed five former Croatian soldiers, A.A., B.J., N.S., G.G. and M.T., all members of the First Brigade of the Croatian army, also called the “Tigers”. None of them had any knowledge about the killing of M.Z. or any other civilians during Operation Storm.

On 15 February 2010, in answer to an inquiry from the SAO, the Sisak State Attorney’s Office drew up a short report on the case. There had been no significant progress.

On 9 and 16 March 2010 the police interviewed M.J., M.L. and M.M., members of smaller army units belonging to brigade 153 of the Croatian Army. M.J., a former member of the engineering unit, said that his unit had comprised between three and five soldiers and that he had never witnessed the killing of any civilians by any of them. M.L., a former commander of logistics in the artillery unit, stated that his unit had never encountered any civilians at any time during Operation Storm, with the exception of a few in Topusko, to whom they had given food and drink. Most of the villages they had passed through had had no name signs. He had no information to give them about the killing of Milan Zdjelar. M.M. had been a soldier in the unit under the command of I.P., and the smaller unit to which he had belonged had been under the command of K. M.M. had no information to give them about the killing of Milan Zdjelar and denied any involvement of his unit in the killing of civilians during Operation Storm.

On several occasions between May and December 2011 the State Attorney’s Office asked the police about the progress of the investigation. Each time the police replied that there had been no progress.

In a separate development, on 8 October 2012, Ž.L., who had been a member of the “Tigers” brigade for about a month in 1994, after which he had been transferred to the Third Battalion, lodged a criminal complaint with the SAO against P.M. – the Minister for war veterans – and others for alleged abuse of authority. In that complaint Ž.L. mentioned the killing of a civilian or civilians in Crni Potok, a few days after Operation Storm. He alleged that the crime had been “tolerated by the command of the Third Battalion (bojna) of the First Brigade of the Croatian Army (“gbr.” which stands for “gardijska brigada”) whose commander had been M.A. On 2 November 2012 the SAO forwarded that information to the State Attorney’s Office in Sisak, which forwarded it to the police on 14 November 2012.

On 22 November 2012 the police interviewed Ž.L. He said that during Operation Storm, the battalion had been in the village of Krznarić and had then gone on to Crni Potok. A person in charge of logistics, named M., had brought in a civilian, saying that he was a “četnik” (derogatory term for a Serbian nationalist or a member of Serbian paramilitary forces). Ž.L. described the man in question in detail. Soon the vice-commander P.Z. and the commander of the Third Company (satnija) J.M. had arrived and had taken the man away somewhere. P.Z. and J.M. had returned after about twenty minutes, and when questioned about the whereabouts of the man they had taken away, P.Z. had answered that he had “drifted in the river”. After some time they had heard firing on a hilltop above them. Ž.L. and another soldier, M.T., had started walking towards the top of that hill and had come to a house where an old woman was standing wailing. There had been no one in the house, but in a field about twenty metres away they had found an elderly man lying on his belly with gunshot wounds to his back and head. A gun had been lying next to him. The man from logistics had said that he had shot him in the head to “shorten his pain”. Ž.L. had expressed his disapproval of the behaviour of the Croatian soldiers to his commander Ž.M. Later on he had learned that the old woman they had encountered in front of her house had also been killed.

On 13 December 2012 the police again interviewed Dragica Zdjelar. She repeated her earlier statement, in essence, and also gave a description of the two soldiers who had killed her father.

During 2013 several short reports on the actions allegedly taken were compiled by the police and the Sisak County State Attorney’s Office.

On 10 July 2013 the SAO sent to the Sisak County State Attorney’s Office a submission by Ž.L. in which he alleged that he had witnessed the killing of civilians in Crni Potok, which had been both encouraged and perpetrated by the officers in command of the Third Battalion (bojna) of the First Brigade of the Croatian Army.

On 16 October 2013 the Zagreb County State Attorney’s Office sent summonses to Dragica Zdjelar, F.O. and Ž.L. for 19 and 20 November 2013.

On 11 November 2013 Ž.L. informed the Sisak County State Attorney’s Office that, owing to his health problems, he would not be able to come to Sisak on his own. He asked that transport to Sisak be organised for him or that he be heard in Karlovac, where he lived. In a further letter written on the same day he stated that some police officers had interviewed him on 22 November 2012 and had concluded that “the information he provided did not lead to the conclusion that a criminal offence had been committed”. He further referred to a letter from the Zagreb State Attorney’s Office of 28 May 2013 stating that “the allegations from his objections and criminal complaints were unfounded”.

On 19 November 2013 Zagreb County State Attorney’s Office heard evidence from Dragica Zdjelar and on 26 February 2014 from F.O. They both repeated their earlier statements.

It appears that on 1 December 2014 the Sisak State Attorney’s Office emailed a summons to Ž.L. requiring him to give a statement regarding the killings in Crni Potok in 1995. On 6 December 2014 Ž.L. sent a note back to the State Attorney’s Office referring to the summons and stating that he refused to give any statements because of his health problems, the passage of time, and the fact that he had not actually witnessed any crimes and that his prior allegations in that respect had been unfounded. He also alleged that he had been denied his rights in connection with his medical treatment. On 31 December 2014 the State Attorney’s Office forwarded Ž.L.’s note to the Sisak County State Attorney’s Office.

On 5 June 2015 the investigation in respect of a number of victims killed on the broader territory of the Sisak County by unknown perpetrators during Operation Storm was assigned to the Osijek County State Attorney’s Office (hereinafter the “OCSAO”).

On 13 July 2016 the OCSAO, relying on Ž.L.’s statement to the police, asked the Ministry of Defence to provide information about the whereabouts of the people Ž.L. had named, in particular P.J., J.M., a person nicknamed M. and the person who had been in charge of logistics in the “Tigers” brigade.

On 23 November 2016 the OCSAO requested that the police in Sisak carry out interviews with one F.K., who possibly had information about the men who had killed Milan Zdjelar; to interview B.J., A.A., N.S., G.G. and M.T., members of the “Tigers” brigade who had been in Crni Potok during Operation Storm, about their whereabouts during the operation; to locate three commanders of the Croatian Army unit whose members had allegedly buried Milan Zdjelar on 10 August 1995 and whose first names all began with M, namely M.J., M.L. and M.M.; and to again interview D.Z., M.V., N.M., D.V, J.V. and M.B., all inhabitants of Crni Potok.

On 20 December 2016 the police informed the OCSAO that F.K., N.M., M.B. and J.V. had died. There were also several people in Crni Potok called M.V. and D.V.

On 29 December 2016 the police interviewed G.G. and N.S., former members of the “Tigers” brigade. G.G. said it was possible that the brigade had passed through Crni Potok during Operation Storm but that they had not seen any civilians. He also said that B.J., N.S. and M.T. had been part of a patrol group (izviđačka desetina).

N.S. said that the “Tigers” brigade had not killed or arrested any civilians or soldiers during Operation Storm.

On 11 January 2017 the Ministry of Defence informed the police about the whereabouts of M.J., M.L. and M.M.

On 16 January 2017 the police interviewed A.A., who had been a member of a “Tigers” brigade patrol group. He said his group had not been in Crni Potok during Operation Storm and he did not know whether the “Tigers” brigade had been there either.

On 24 April 2004 the applicants and their mother brought a civil action against the State in the Gvozd Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act.

The claim was dismissed on 14 July 2005. This judgment was upheld on appeal by the Sisak County Court on 18 June 2009 and by the Supreme Court on 5 October 2011. The national courts found that the claim for compensation had been submitted after the expiry of the statutory limitation period prescribed by the law governing damages awards in civil proceedings.

A subsequent constitutional complaint lodged by the applicants was dismissed on 5 June 2012.