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

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

The applicant was born in 1971 and lives in Helsinki.

The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child’s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child’s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child’s father.

In July 2006 the child’s father initiated custody and contact rights proceedings vis-à-vis his daughter.

In August 2006 the Kouvola District Court (käräjäoikeus, tingsrätten) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2007. According to the applicant, the child was often restless and talked strangely after the meetings with her father.

On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision.

On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights.

On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court’s decision.

The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter’s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse.

On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation.

On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more.

On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime.

After having received information about the conclusion of the pretrial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter.

In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pretrial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police.

On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child’s father. She also reported the matter to the social workers in Helsinki.

On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found.

The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre-trial investigation was concluded on 4 May 2008 as there was no appearance of any crime.

On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus, Rättsskyddscentralen för hälsovården) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office (lääninhallitus, länsstyrelsen).

On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), asking him to investigate why the police did not hear her child during the pre-trial investigation.

On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals.

On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year agelimit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant’s case.

On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant’s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child.

On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime.

On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in nonpecuniary compensation and his costs and expenses amounting to EUR 1,885.66. The court’s reasoning was the following:

“The insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of “reason to suspect” would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl’s somatic status was normal and there were no external signs of sexual abuse.

From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually-coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old.

On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child’s other, more general symptoms have given sufficient confirmation of her insinuation.

When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child’s father] and that its content, being almost of the worst kind, was bound to cause him suffering.

Ignorance of legal provisions does not eliminatebasis for considering that M.P.’s act could be regarded as manifestly excusable due to a mistake.

On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him.”

By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court (hovioikeus, hovrätten). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child’s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre-trial investigation. She considered this mistake to be so substantial that the danger to her child’s health still existed despite the outcome of the investigation. She also referred to the case Juppala v. Finland, no. 18620/03, 2 December 2008.

On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following:

“On the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [...] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [...] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre-trial investigation into [the child’s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pretrial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.”

By letter dated 7 March 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court.

On 14 December 2011 the Supreme Court refused the applicant leave to appeal.

On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him.

On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal.

The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785/12 M.P. and E.B. v. Finland) which was declared inadmissible on 17 April 2014.

On an unspecified date the applicant asked the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board (Poliisihallitus, Polisstyrelsen).

On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre-trial investigation without leaving any issues unclarified.


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

The applicant, Mr Payam Tamiz, is a British national, who was born in 1989 and lives in Maidstone. He was represented before the Court by Withers LLP, a firm of solicitors based in London.

The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.

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

Google Inc. is a corporation registered in the United States and with its principal place of business there. It provides an Internet blog-publishing service via Blogger.com, a platform that allows any Internet user in any part of the world to create an independent blog free of charge. It includes design tools to help users create layouts for their blogs and, if they do not have their own web address, enables them to host their blogs on Blogger.com web addresses.

Blogger.com operates a “Content Policy” which sets out restrictions on what users can do using the service. This makes clear that content such as child pornography, or promoting race hatred, is prohibited. The policy is explained in the following terms:

“Blogger is a free service for communication, self-expression and freedom of speech. We believe that Blogger increases the availability of information, encourages healthy debate and makes possible new connections between people.

We respect our users’ ownership of and responsibility for the content they choose to share. It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression.

In order to uphold these values, we need to curb abuses that threaten our ability to provide this service and the freedom of expression it encourages. As a result, there are some boundaries on the type of content that can be hosted with Blogger. The boundaries we have defined are those that both comply with legal requirements and that serve to enhance the service as a whole.”

In addition, Google Inc. operates a “Report Abuse” feature. There are eight grounds for reporting abuse, including “Defamation/Libel/Slander”. If the user selects ‘Defamation/Libel/Slander’, a second screen is displayed which makes it clear that the Blogger.com service is operated in accordance with US law, and that defamatory material will only be taken down if it has been found to be libellous (i.e. unlawful) by a court. According to Google Inc., the reason for this policy is that, given the volume of content uploaded by users of the Blogger.com service, it is usually not practicable for it to remove content without first receiving a court’s determination that the content is, in fact, libellous. Google Inc. is not in a position to adjudicate such disputes itself.

On 27 April 2011 a piece appeared on the “London Muslim” blog, a blog hosted on the Blogger.com website. It contained a photograph of the applicant and the following text:

“Payam Tamiz a Tory Muslim council candidate with a 5 o’clock shadow has resigned from the party after calling Thanet girls ‘sluts’.

Tamiz who on his Twitter page describes himself as an ‘ambitious British Muslim’ is bizarrely studying law so one would have thought this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks.”

A number of anonymous comments were subsequently posted in response to the publication. Eight of the approximately forty-six comments are set out, as originally posted, in the following paragraphs.

Comment A:

“I know Mr Tamiz very well and am surprised that it has taken this long for all this to come out, Payam is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in Ramsgate. His whole family are criminals his mother Mrs [L.] has several convictions for theft and shoplifting and got sentenced at maidstone crown court

28 April 2011 14:53”

Comment B:

“Can’t deny what he said is true but isn’t this the same Payam Tamiz that use to take girls back to his ‘houseparties’ practically every weekend with his friends and sleep with them? Hypocritical much?

30 April 2011 12:28”

Comment C:

“The blokes a class A prat not only for the comments he recently made. He may have a few half wits as a following but I speak for the people that have known payam for several years and have been on the reciving end of his abuse a disrespect and his not such a nice person. I’m sure we’ll be hearing alot more from his past which will paint a true picture of him.

28 April 2011 23:04”

Comment D:

“So Mr Whacker is a violent racist, certainly doesn’t like white people does he?!

If you’d ever been to Margate you would find the majority are white women, even those from the Eastern bloc. To tar all Margate women with the word slut is very derogatory, how does he know? Does he make a habit of chasing women around? Or as someone implys above, does he sell drugs to them?

28 April 23:51”

Comment E:

“I’ve only read that Payams claiming to be 21, I’m sure he told me that his older than that. Fake asylum claim was it. The good old home office and all us wankers that pay tax for waste of spaces like him.

29 April 2011 01:09”

Comment F:

“Before Payam starts to call women sluts it might be an idea for him to look closer to home, how may brothers and sisters has he got, all with different fathers. I thought Muslim men were the one who were meant to have more than one wife, not the women with more than one husband. Is there not a 30 year gap between the ages of his younger to older brother and sister. Look closer to home pal.

29 April 2011 09:40”

Comment G:

“The only reason his callig girls slags is cos he aint getting none himself. And he blames a relationship breakup for his comments, but the only problem with that being is that Payams never had a girlfriend since I known him and thats been a couple of years, that makes him single at the time.

Poor little Payam, has you giving it the large one to your friends blown up in your face and back fired.

It couldn’t have happeneded to a better person, his a little snake and he knows it. I’d put my money on him still being a virgin, not being funny but you only got to look at his picture to work that out.

29 April 2011 21:26”

Comment H:

“And his brothers girl friend is an escort girl, [L.], look closer to home pal.

29 April 2011 18:43”

According to the applicant, on 28 or 29 April 2011 he used the “report abuse” function to indicate that he considered certain comments on the blog to be defamatory.

On 29 June 2011 he sent a letter of claim to Google UK Ltd (a United Kingdom subsidiary of Google Inc.), which was received on 5 July. In his letter he complained about the blog itself and about comment A. The letter was passed by Google UK Ltd to Google Inc., which responded by email on 8 July 2011 seeking clarification of whether the comment was said to be untrue, since that was not apparent from the terms of the letter. The applicant responded on the same day confirming that comment A was “false and defamatory” and introducing a complaint about comment B.

On 19 July 2011 the “Blogger Team” at Google Inc. sent the applicant an email seeking permission to forward his complaint to the author of the blog page and confirming that they would not themselves remove the impugned comments. The applicant gave the necessary permission on 22 July 2011 and complained that comments C, D, E, F and G were also defamatory.

On 11 August 2011 Google Inc. forwarded the letter of claim to the blogger.

On 14 August 2011 the post and all the comments were removed by the blogger. The applicant was informed the following day.

Meanwhile, the applicant sought to bring a claim in libel against Google Inc. in relation to comments A to G. On 10 August 2011 he sent a letter of claim, together with the relevant particulars of claim, to the court and on 22 September 2011 permission was granted to serve the claim form on Google Inc. in the United States. The applicant subsequently incorporated a complaint about comment H into the particulars of claim and served them on Google Inc.

Google Inc. sought to have the permission to serve the claim out of jurisdiction set aside and asked the High Court to declare that it had no jurisdiction to try the claim. It argued that:

the claim form did not allege that the comments had been accessed by a substantial number of readers in the jurisdiction. There was therefore no “real and substantial” tort (see paragraphs 50-53 below);

Google Inc. was not a publisher for the purposes of the English law of defamation, but merely a neutral service provider which did not create and had no control over the content users posted on their blogs; and

even if Google Inc. were to be regarded as a publisher, it would be protected from liability by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (“the 2002 Regulations” – see paragraph 49 below).

On 2 March 2012 the High Court held that it should decline jurisdiction and that the order for service out of the jurisdiction should be set aside.

The judge first considered whether there was any evidence of a “real and substantial tort” within the jurisdiction. He considered each of the comments individually and while he characterised comments C, E, F, G and H as “mere vulgar abuse” to which no sensible person would attach much, if any, weight, he accepted that comments A, B and D were arguably defamatory.

On the question of whether Google Inc. was the “publisher”, the judge noted that the applicant did not allege that it could be liable for the comments complained of before he notified it of their potential unlawfulness. Consequently, the judge only considered it necessary to assess potential legal liability from the point of notification.

The judge considered it relevant, although not determinative as a matter of law, that Google Inc. promulgated and attempted to follow a wellknown policy of not removing offending material on the basis that it was not in a position to investigate or come to a decision upon any legal challenge. This was partly a question of principle and partly a matter of sheer practicality: on the one hand, Google Inc. regarded itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor; on the other hand, the blogs on Blogger.com contained more than half a trillion words and 250,000 new words were added every minute. It would therefore be virtually impossible for the corporation to exercise editorial control over content.

The judge further noted that one should guard against imposing legal liability in restraint of Article 10 of the Convention where it was not necessary or proportionate to do so. In this regard, he considered the possibility of an action against the authors of the comments and possibly the author of the blog. While he accepted that this approach “may be regarded as more theoretical than real due to problems of anonymity”, it was an argument that could not simply be ignored. However, the important question was not whether the applicant could identify the authors or bloggers in question, but rather whether he was in a position to establish against Google Inc. the necessary attributes of a publisher.

The judge concluded:

“38. Google Inc. accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. The fact that an entity in Google Inc.’s position may have been notified of a complaint does not immediately convert its status or role into that of a publisher. It is not easy to see that its role, if confined to that of a provider or facilitator beforehand, should be automatically expanded thereafter into that of a person who authorises or acquiesces in publication. It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication. It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.

It seems to me to be a significant factor in the evidence before me that Google Inc. is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant’s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one ... I would rule that Google Inc. is not liable at common law as a publisher. It would accordingly have no need to rely upon a defence (statutory or otherwise).”

Finally, the judge said that if, contrary to that view, Google Inc. was to be regarded as a “publisher”, section 1 of the Defamation Act 1996 (“the 1996 Act” – see paragraphs 45-48 below) provided it with a defence, notably because it took reasonable care in passing the complaint on to the blogger once it had been notified. In reaching this conclusion, he accepted that the period between notification and the removal of the offending post was so short as to give rise to potential liability on the part of Google Inc. only for a very limited period with the consequence that its potential liability, if any, would be so trivial as not to justify the maintenance of the proceedings. Alternatively, regulation 19 of the 2002 Regulations would provide Google Inc. with a defence if it were otherwise needed.

The applicant sought leave to appeal to the Court of Appeal. He argued that the High Court was wrong to conclude that Google Inc. was not a “publisher” at common law; that Google Inc. had an unanswerable defence under section 1 of the 1996 Act; and that Google Inc. had an unanswerable defence under regulation 19 of the 2002 Regulations. Although his arguments primarily focused on domestic law, at the end of his written grounds he argued that in interpreting regulation 19 of the 2002 Regulations, the right to freedom of expression in Article 10 of the Convention was not to be prioritised, that reputation was among the rights protected by Article 8, and that Article 8 and 10 rights were to be accorded equal weight.

Leave to appeal was granted and on 14 February 2013 the Court of Appeal dismissed the appeal.

With regard to the date of notification, the applicant had submitted that between 29 April 2011 and the letter of claim he had made various telephone calls to Google UK Ltd and sent two letters to that company’s office. However, the Court of Appeal noted that the transcript of the High Court hearing made it “tolerably clear” that he had been content to proceed on the basis that the date of notification of the complaint to Google Inc. fell between 5 July 2011 (when Google UK Ltd received his letter) and 8 July 2011 (when Google Inc. first contacted him by email). The court refused to admit fresh evidence in the form of the letters allegedly sent to Google UK Ltd since these documents could have been submitted for use at the hearing below.

The court further accepted the High Court’s findings as to the nature of the comments and agreed with its conclusion that comments A, B and D were arguably defamatory.

On the question of whether Google Inc. was a publisher, the court noted that the applicant’s pleaded case related to the period after Google Inc. had been notified of the complaint. It considered the High Court judge to have been wrong to regard Google Inc.’s role during this period as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc. in relation to continued publication of the comments in issue. It explained:

“24. By the Blogger service Google Inc. provides a platform for blogs, together with design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its own choice and it can readily remove or block access to any blog that does not comply with those terms ... As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.

By the provision of that service Google Inc. plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc. and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc. and do not act in any sense on its behalf or in its name ...”

The court was also very doubtful that Google Inc.’s role was that of a secondary publisher, facilitating publication in a manner analogous to a distributor. It concluded that, in any event, such an argument could get nowhere in relation to the period prior to notification of the complaint in light of a long-established line of authority that a person involved only in dissemination was not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. Since it could not be said that Google Inc. knew or ought reasonably to have known of the defamatory comments prior to notification by the applicant, Google Inc. could not be viewed as a secondary publisher prior to such notification. The court further found that even if it could be so regarded, it would have an unassailable defence during that period under section 1 of the 1996 Act.

As to Google Inc.’s position after notification, the Court of Appeal took a different view from the High Court. It considered that if Google Inc. allowed defamatory material to remain on a blog after it had been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material. However, such an inference could not properly be drawn until Google Inc. had had a reasonable time to remove the defamatory comments. The court considered it open to argument that the time taken to remove the comments after notification – over five weeks as regards comments A and B – was sufficiently long to give rise to such an inference. The claim could therefore not be dismissed on the ground that Google Inc. was clearly not the publisher.

It was accordingly necessary to consider the defence under section 1 of the 1996 Act. Here, while the Court of Appeal accepted that the conditions in subsections 1(a) to (c) were plainly satisfied in relation to the period prior to notification of the complaint, it was not persuaded that in the period after notification Google Inc. did not know, and had no reason to believe, that what it did caused the publication of a defamatory statement. The court was therefore not satisfied that, if Google Inc. were considered to be a publisher, it would have an unassailable defence under section 1 of the 1996 Act.

Nevertheless, the Court of Appeal found that the High Court was plainly right to conclude that the claim should not be allowed to proceed because both the damage and any eventual vindication would be minimal and the costs of the exercise would be out of all proportion to what would be achieved (in other words, that there had been no “real and substantial tort”). It explained:

“50. ... The allegedly defamatory comments were posted between 28 and 30 April, soon after the initial blog of 27 April. By the very nature of a blog, they will have been followed by numerous other comments in the chain and, whilst still accessible, will have receded into history. As I have indicated, the earliest point at which Google Inc. could have become liable in respect of the comments would be some time after notification of the complaint in respect of them. But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows ... that any damage to the appellant’s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the [High Court] judge was right to consider that ‘the game would not be worth the candle’. I do not accept [the] submission that various other features of the claim, including the fact that the appellant’s name is relatively uncommon and distinctive in this jurisdiction, undermined the judge’s conclusion.”

It followed that the appeal failed and, in the circumstances, it was unnecessary to consider whether Google Inc. would have had a defence under regulation 19 of the 2002 Regulations.

The applicant sought permission to appeal to the Supreme Court. He argued that the judgment of the Court of Appeal did not strike the correct balance between Articles 6, 8 and 10 of the Convention and unlawfully denied him access to a court and deprived him of the means to vindicate his Article 8 rights.

On 1 July 2013 the Supreme Court refused permission to appeal on the basis that the applicant did not raise an arguable point of law.

In order to become legally responsible for the publication of a defamatory statement, and therefore potentially liable in the tort of defamation, English law requires, as a minimum, knowing involvement in the process of publication of the relevant words: Bunt v. Tilley [2007] 1 WLR 1243. Accordingly, a person whose role is confined to the process of disseminating allegedly objectionable content is not to be treated as a “publisher”, in the sense required to give rise to potential liability in defamation, unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory.

The Defamation Act 1996 amended the law of defamation. Section 1 is headed “responsibility for publication” and provides, in subsection (1), that a person has a defence in defamation proceedings if he shows that:

“(a) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

Pursuant to section 1(2), “author”, “editor” and “publisher” have the following meanings:

“‘author’ means the originator of the statement, but does not include a person who did not intend that his statement be published at all;

‘editor’ means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and

‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.”

Section 1(3)(e) provides that a person shall not be considered the author, editor or publisher of a statement if he is only involved as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

Pursuant to section 1(5), in determining whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard must be had to:

“(a) the extent of his responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the author, editor or publisher.”

Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which implemented the provisions of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council dated 8 June 2000 relating to electronic commerce (see paragraph 55 below), provides:

“Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where–

(a) the service provider–

(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or

(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and

(b) the recipient of the service was not acting under the authority or the control of the service provider.”

Under English law, a claimant normally requires the national courts’ permission to serve proceedings on a defendant who is domiciled outside the jurisdiction. A claimant may apply to the court for permission without giving notice to the prospective defendant. However, if permission is granted, the foreign defendant may apply to have the order set aside.

In Dow Jones & Co Inc v.Yousef Abdul Latif Jameel [2005] EWCA Civ 75 the Court of Appeal held that an application to set aside permission to serve defamation proceedings out of the jurisdiction could be granted on the basis that the publications complained of did not, individually or collectively, amount to “a real and substantial tort”. Although jurisdiction was no longer in issue in that case, the court further noted that it would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where little was seen to be at stake.

In reaching this conclusion, the court observed:

“There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”

In Mohammed Hussein Al Amoudi v. Jean Charles Brisard And Jcb Consulting International Sarl [2006] EWHC 1062 (QB) the High Court found no basis for concluding that a claimant in a libel action on an Internet publication was entitled to rely on a presumption of law that there had been substantial publication. Rather, the claimant had to prove publication from the Internet either to identifiable third parties or by asking the court to draw an inference based upon facts admitted or proved.

On 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet. According to Principle 6,

“In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.”

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provides, insofar as relevant:

Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.”

A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:

“No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content.”


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1992 and lives in Tbilisi.

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

On 9 November 2006 a classmate of the applicant, Mr T.T. (hereinafter “T.T.”), was stabbed several times in a secondary school playground. The applicant, aged fourteen at the material time, was present at the scene. There were no eyewitnesses to the incident.

According to the applicant’s version of the events, on the above date and at the material time, she met with T.T. in the school playground. They were discussing T.T.’s need for a certain sum of money when four young men – strangers to the applicant – appeared and two of them immediately attacked T.T. One of the two attackers held T.T. down on the ground and both men stabbed him several times with two different knives. The applicant claimed that T.T. had owed them money. One witness (“the witness”) stated that at the material time she had seen two young men fitting the description given by the applicant climb into the school playground swearing and leave after a while.

According to the official version of the events based on T.T.’s statements, the applicant and T.T. met in the school playground following the former’s promise to lend T.T. a certain sum of money. In the course of the conversation, T.T. kneeled with his back to the applicant. At that moment, the applicant hit him on the head. T.T. fell to the ground and the applicant stabbed him with a knife from behind. While T.T. remained conscious, the applicant held him down with one hand and continued stabbing him with the other. T.T. was facing the ground during the entire incident and could not see whether the applicant was using a knife. T.T. managed to escape from the applicant and ran approximately forty metres before falling unconscious on the school’s basketball court, where he was eventually found. Later he was transported to a hospital where, after emergency surgery, his life was saved.

On 14 November 2006 the applicant was arrested in view of T.T.’s statement given to the investigating authorities. She was subsequently remanded in custody on charges of attempted aggravated murder.

On 9 January 2007 a forensic expert report of the Ministry of the Interior (“the first MI report”) confirmed that multiple wounds had been inflicted upon the victim with “a sharp object, possibly a knife”. A forensic chemical examination report no. 443/sq produced by the Ministry of the Interior (“the second MI report”) found particles of grey cotton fibre on the applicant’s jacket that by their colour, structure, and type were similar to the grey cotton fibre contained in the textile of the victim’s jacket.

On an unspecified date an initial forensic medical expert report no. 6135 by the National Forensic Bureau (“the first NFB report”) concluded that T.T.’s wounds had been inflicted with a sharp object and that taken together, they had been life-threatening. The expert attached particular importance to two wounds to the chest which had perforated T.T.’s lungs. Between 16 and 20 February 2007 the same forensic expert carried out an additional examination and issued report no. 998/31 (“the second NFB report”) at the applicant’s request. The second report specified that six wounds had perforated T.T.’s lungs and re-confirmed that “all the wounds had been inflicted with some sharp object/objects and, taken together, were life-threatening.” Concerning the question of whether the injuries were inflicted on the victim with one or several weapons, the NFB expert stated:

“In order to answer that question it is necessary to convene a panel of forensicmedical experts, and additionally to have the clothes as well as the object/objects possibly used to inflict the injuries presented, if available.”

The expert testified during the proceedings before the first-instance court that the discrepancy between the first and the second NFB reports concerning the number of wounds inflicted on the victim had been caused by the poor quality of the photocopied material relied on during the first NFB expert examination. The expert confirmed that the second NFB report was therefore more accurate and six, rather than two, wounds had perforated T.T.’s lungs. The exact figure depicting the total number of wounds was not explicitly specified either by the experts or by the domestic courts.

On 12 June 2007 the Tbilisi City Court found the applicant guilty as charged and sentenced her to ten years’ imprisonment, of which the last five years were suspended on probation. Dismissing altogether the applicant’s version of the events and relying on T.T.’s statements, the first and second NFB reports, the first and the second MI reports and other evidence in the case, the court found that the applicant had stabbed T.T. “with a knife.” The knife was never recovered. Amongst certain other items of evidence, the City Court also referred, in its judgment, to statements of several witnesses, schoolmates of the applicant, according to which the latter was known for having been carrying a knife with her at school on a regular basis.

The applicant appealed, reiterating that the victim had been stabbed by two young men with two knives and that she could not possibly have inflicted the wounds alone. She argued that the witness statement supporting her version of the events had been rejected arbitrarily. During the trial at the Tbilisi Court of Appeal, in accordance with Article 364 § 1 of the Code of Criminal Procedure (see paragraph 40 below), the defence adduced in evidence two alternative forensic reports, both issued on 2 November 2007, and argued that their results supported the applicant’s version of the events, including the use of two knives, and conclusively excluded the applicant’s guilt.

The first report, of a comprehensive alternative forensic expert examination, was prepared by a panel of experts at a private forensic science centre. The descriptive part of the report no. 42/k, which reflected results of an examination carried out between 25 October and 2 November 2007 (“the first alternative forensic report”), was based on the following material: the judgment of the first-instance court, T.T.’s statements, the applicant’s statements, the first MI report and T.T.’s medical file.

The applicant’s lawyer presented the panel of experts with the following questions:

“1. Based on the [existing evidence and the victim’s statements] ... was the victim capable of showing resistance to G. Kuparadze or otherwise defending himself ...?

Considering the existing material, what type of pain and responsive reactions (self-defence, etc.) would the [victim] have had at the time the first injury was inflicted on him?

In view of the [victim’s] statements and considering the mechanism used to inflict the injuries described in the [forensic reports], how plausible is it that G. Kuparadze inflicted them on the [victim] by holding his shoulder with one hand while the latter was initially kneeling and then crawling on the ground face-down?

In view of the convicted G. Kuparadze’s statement, how possible is it that the [victim’s] injuries described in the [forensic reports], given the mechanism used to inflict them, were inflicted by two different persons if one of them had been holding [the victim]?”

excerpts from the applicant’s criminal case file with the following concluding paragraph:

“Given that the [first-instance] court accepted the [victim’s] statements and dismissed the statements given by the convicted G. Kuparadze and [the witness], that the statements given by the [victim] and the convicted G. Kuparadze essentially contradict each other, that there is no eyewitness in the case except for [the witness], as well as the fact that the weapon of the crime is missing, the lawyer commissioned the alternative expert examination to determine the truth regarding the case and in order to receive answers to his questions.”

This was followed by a more detailed account and an assessment of the matter.

After examining all the material at hand, the experts came to the following conclusions in response to the questions posed by the applicant:

“1. ... Before losing consciousness, T.T. was able to carry out various active measures (self-defence, punching, running, etc.).

... [considering the nature of the injuries] T.T. would have experienced a sharp, strong pain at the moment of their infliction which would have triggered adequate self-defensive or other movements.

Considering the statement given by T.T. ... the location of the wounds ... and the anatomical-physiological differences between the sexes ... it is hard to imagine how G. Kuparadze could have inflicted the wounds on T.T. in the conditions described by the latter.

Considering the nature and location of T.T.’s wounds, it is entirely possible that they were inflicted in the conditions described by G. Kuparadze (by two individuals, one holding T.T. and both stabbing him with knives).”

The applicant’s lawyer commissioned a second forensic expert report from the Research Centre for Independent Forensic Examinations of the Georgian Technical University concerning the instrument of the crime and other technical aspects of the incident. The report no. 2-e-116, which reflected results of an examination carried out between 19 October 2007 and 2 November 2007 (“the second alternative forensic report”), was based on the following material: the statements of T.T., the statements of the applicant, the first MI report, the second NFB report, T.T.’s medical file and the first-instance court judgment.

The lawyer presented the panel of experts with the following questions:

“1. In view of the [forensic] expert reports presented, were the injuries to [the victim’s] body and [through his] clothes inflicted with one or several objects (knives)?

How possible is it that G. Kuparadze inflicted the wounds as described in T.T.’s statement, by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face-down, in view of the mechanism used to inflict the wounds [described in the forensic and forensic medical reports]?

How possible is it that the ... wounds were inflicted by two different individuals and accordingly with two different knives, in accordance with the statement given by G. Kuparadze?”

Having provided a reconstruction of the incident by means of sketches and having analysed the case materials, the experts reached the following conclusions:

“1. The wounds were inflicted on T.T.’s body and [through his] clothes not with one but with two sharp objects, possibly knives, of different sizes, 2 and 4 centimetres wide [respectively].

G. Kuparadze could not have inflicted the wounds as described in T.T.’s statement, by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face-down, in view of the mechanism used to inflict the wounds [described in the forensic and forensic medical reports] and bearing in mind the limited access to the areas of impact.

... it is possible ... that the ... wounds were inflicted by two different individuals (and accordingly with two different knives), as described in G. Kuparadze’s statement.”

On 7 December 2007 the Tbilisi Court of Appeal upheld the conviction. Concerning the applicant’s argument that the witness statement confirmed her version of the events, the court reasoned that although the witness had stated that she had seen two men climb in and out of the school playground, she had also said that that was a common sight at that school. Accordingly, the court found it impossible to establish that those persons had been implicated in T.T.’s stabbing.

The Court of Appeal dismissed the two alternative forensic reports commissioned by the defence. Regarding the first alternative forensic report, the court stated the following:

“The court cannot accept the findings of the [first alternative forensic report] given that it is drafted in violation of a number of procedural norms. In particular, information as to which specific materials were presented [to the experts] and relied on when reaching the conclusions is missing; the research part of the forensic report contains a legal assessment of the [first-instance court] judgment and of a number of pieces of evidence, whereas under Article 96 of the Code of Criminal Procedure an expert examination is not to be carried out to determine legal matters. Furthermore, the concluding part of the expert examination [report] is presumptive, speculative and based on probability which, in the first place, is beyond the expert’s competence as provided for in Articles 365 [and] 374 of the Code of Criminal Procedure, [and] no evidentiary value may be attributed to speculative findings, in accordance with Article 371 (6) [of the Code].”

As regards the second alternative forensic report, the court noted the following:

“The court cannot accept the findings of the [second alternative forensic report] as they are also speculative. Furthermore, the report relies on the conclusions of the medical and forensic expert examinations [medical documentation, the MI report and the second NFB report] which themselves do not categorically determine the nature of the object used to inflict the injuries on the victim, and even more so the number [of such injuries]. Without referring to a concrete scientific study, the [report] analyses and rejects the victim’s statement and relies on the statement of the accused.”

The appellate court also reasoned that the applicant’s argument that two unidentified men had beaten the victim while stabbing him was not confirmed in view of the absence of any physical signs of beating in the relevant forensic medical report. In the subsequent part of the judgment the Court of Appeal referred to the first and the second MI reports and the second NFB report, among other evidence, while upholding the judgment of the first-instance court.

On 12 September 2008 the Supreme Court of Georgia dismissed an appeal on points of law lodged by the applicant as inadmissible. Without responding to the applicant’s arguments that the lower courts’ dismissal of the alternative forensic reports had been erroneous and arbitrary, and that the main argument of the defence had been left without an appropriate answer, the court reproduced the relevant provision of the Criminal Procedure Code, holding that “the case [was] not important for the development of the law and coherent judicial practice, the [contested] decision [did] not differ from the Supreme Court’s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.”

On 16 November 2006 the applicant, aged fourteen at the time, was remanded in custody and placed in a cell together with adult female inmates in Tbilisi Prison no. 5 for Women and Juveniles (“prison no. 5”). According to the case file, the applicant did not complain about the material conditions of her detention in that cell.

On 10 January 2007 the Minister of Justice issued an order for the creation of a separate section for juvenile female offenders within prison no. 5, and instructed the relevant authority to separate the inmates accordingly.

On 24 January 2007 the applicant was moved to the newly created juvenile section of prison no. 5. She was alone in a cell for five months and subsequently shared the cell with two other juveniles. The applicant complained about the material conditions of detention in that cell during the proceedings concerning the deferral of her sentence (see paragraphs 3234 below).

On 21 February 2009 the Public Defender of Georgia visited the applicant in prison. In letters dated 6 March and 24 April 2009 addressed to the Minister of Corrections and Legal Assistance, the Public Defender expressed his concerns about the conditions of the applicant’s detention in prison no. 5. According to him, the cell in which the applicant was detained with two other juveniles measured approximately 12-15 square metres, the water tap was out of order, causing humidity in the cell, and the ventilation did not function properly, which led to an unpleasant odour. According to a press release issued by the Public Defender’s Office on 20 March 2009, the tap in the applicant’s cell was fixed shortly afterwards.

On 11 March 2009 the applicant instituted proceedings requesting the deferral of her sentence pending the construction of a separate detention facility for juvenile female offenders. She argued that, in the absence of a separate facility, her detention in the adult prison, even if in a separate section for juveniles, as such amounted to a breach of Article 3 of the Convention. She further complained that the cell where she was serving her sentence was too small, the water tap was out of order causing humidity, the ventilation did not function properly, and that she was deprived of the opportunity to have daily walks, contrary to Article 3 of the Convention.

On 16 June 2009 the Tbilisi City Court rejected the deferral request as manifestly ill-founded. It reasoned that domestic legislation did not provide for deferral of a sentence pending the construction of a separate detention facility for juveniles and that the complaints concerning the alleged violation of the applicant’s rights under Article 3 of the Convention had not been substantiated. The applicant appealed.

On 23 September 2009 the Tbilisi Court of Appeal rejected the appeal as manifestly ill-founded in a final decision. It reasoned that such a deferral was not guaranteed by the domestic legislation. As regards the applicant’s allegation that her rights under Article 3 of the Convention had been violated, the court found the complaint unsubstantiated and contrary to the material available before it. It based its finding on the applicant’s own admission before the court that she had been afforded the possibility of unlimited daily walks but sometimes chose not to use her exercise time, as she preferred not to share the space with other inmates, that she was free to take showers even if taking turns with other juvenile inmates, and that she was able to see the psychologist present in the prison without any problems.

According to the applicant, she completed her secondary education while in detention, and was admitted to a university after passing the requisite admission exam.

On 11 November 2011 the applicant was released on probation.


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Slavko Vuković, is a Croatian national, who was born in 1937 and lives in Split. He was represented before the Court by Mr I. Mirošević, an advocate practising in Split.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

By decisions of 15 February and 10 November 1983 the Split Municipality (a) declared that four plots of land in Split in the applicant’s possession had been nationalised and become socially-owned already on 8 August 1968 with the entry into force of the Croatia’s Act Designating the Construction Land in Towns and Urban Areas (see paragraphs 23-24 below), and (b) dispossessed the applicant of the land at issue with a view to constructing a block of flats and an elementary school on them.

By a decision of 5 April 1985 the Split Municipality expropriated the house owned by the applicant which was built on one of the plots in question.

On 11 December 1989 the Split Municipality offered the applicant as compensation permanent usage (trajno korištenje) of another plot of land for the construction of a house. The applicant refused the offer and instituted non-contentious proceedings with the Split Municipal Court (Općinski sud u Splitu) with a view to obtaining compensation for his nationalised and expropriated property under the 1978 Expropriation Act.

On 18 February 1994 the new Expropriation Act (hereafter “the 1994 Expropriation Act”, see paragraph 26 below) entered into force. Shortly afterwards, the case was transferred to the administrative authorities, in particular to the regional office of the state administration in the Split-Dalmatia County (Ured državne uprave u Splitsko-dalmatinskoj županiji, hereinafter “the County Office”).

On 17 September 1995 the tax authorities carried out an onsite inspection of the nationalised land and assessed its value at 3,302,604.77 Croatian kunas (HRK).

On 23 May 1996 the applicant requested a total amount of HRK 9,430,140 for the land and the house.

On 22 September 2000 the applicant amended his request, asking for HRK 7,446.227.95 in total.

On 23 October 2000 the tax authorities carried out another onsite inspection and assessed the value of the nationalised land at HRK 5,304,992. On 23 April 2001 the tax authorities assessed the value of the expropriated house at HRK 514,009.01.

At the hearing of 6 March 2002 the applicant contested the findings of the tax authorities and undertook to submit proof of the current market value of the appropriated property.

The applicant engaged a court expert, Mr R., to carry out the property valuation. On 3 April 2002 Mr R. drew up a report establishing the market value of the nationalised land at HRK 7,338,715.80. The applicant submitted the report to the County Office on 19 April 2002.

On 12 October 2003 the applicant increased his request for compensation, arguing that the value of the nationalised land had meanwhile risen to HRK 10,361,736. He relied on the rise of land prices in 2002 and 2003 caused by the construction of the Split ring-road.

By a decision of 23 June 2004 the County Office awarded the applicant compensation in the overall amount of HRK 8,344,393.72. Specifically, it relied on Mr R.’s expert opinion of 19 April 2002 (see paragraph 13 above) and awarded HRK 7,338,715.80 for the nationalised land. It further awarded HRK 514,009.01 for the expropriated house, relying on valuation by the tax authorities of 23 April 2001. Lastly, it awarded HRK 491,668.91 for the construction improvements and agricultural crops, relying on an older valuation by the tax authorities. The relevant part of that decision reads as follows:

“The market value is the price which an immovable property can obtain on the market, dependent on supply and demand at the time of its determination.

According to the ... valuation by the tax authorities of 1995, the immovable property’s value is HRK 368 per square metre ... according to the 2000 valuation, it is HRK 616 per square metre.

According to the valuation submitted by [the applicant], carried out by the court expert for civil engineering and property valuation, Mr. R., in 2002, the immovable property’s value is EUR 100 per square metre (HRK 741).

As the valuation of the court expert Mr. R. is newer and does not significantly differ from the valuation [by the tax authorities] ... there were no reasons for dismissing the [Mr R.’s] valuation as it represents the price of construction land in that location.”

The applicant lodged an appeal against the above decision before the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske, hereinafter “the Ministry”), arguing, inter alia, that under section 33 of the 1994 Expropriation Act (see paragraph 26 below) the compensation should have been calculated on the basis of the market value at the time when the decision on compensation was adopted. He submitted a number of items of evidence, such as newspaper articles and decisions on compensation in other cases, pointing out that the market value had risen during 2002 and 2003.

On 31 May 2005 the Ministry dismissed the applicant’s appeal in the part concerning the compensation for the nationalised land. At the same time it quashed the first-instance decision in the remaining part (including the compensation for the expropriated house) and remitted the case. The relevant part of that decision reads as follows:

“The level of compensation for the undeveloped construction land [the applicant] was dispossessed of was correctly determined. The first-instance authority accepted the expert opinion of Mr R. of 3 April 2002, and not the earlier valuations by the tax authorities ...

The argument raised in the appeal ... that the compensation was set ... too low is unfounded.

Namely, in proceedings involving dispossession compensation is fixed by applying provisions of the Expropriation Act on market value compensation. However, [in such cases] the market value compensation must be determined with regard to the state of the immovable property and the modes of its usage at the time of deprivation. [The applicant’s data on the higher price of construction land] concern construction land with the entire necessary infrastructure, whereas the land in question did not have the entire infrastructure at the time of deprivation [i.e. dispossession in 1983]. Therefore, the current market value of the land in the same [location] in Split (Pujanke) cannot be used for comparison, as the state of immovable property in question in 1983 and today differs significantly in terms of infrastructure. In addition, the construction of roads and the ring-road in 2003 and 2004 contributed significantly to the rise of the price of construction land, but has no significance for the level of compensation correctly established in 2002. Therefore, the expert opinion cannot be deemed too old with regard to the date of the adoption of the first-instance decision... as it sets the price in euros as well ...

However, [the applicant’s] appeal is well-founded in part concerning the compensation for the house, the construction improvements and the agricultural crops. ... [Valuations] by the tax authorities [in respect of that property] do not include any reasoning and it is unclear on the basis of which criteria this part of the compensation has been determined.

Therefore, such findings cannot serve as a starting point for fixing the compensation for that property ...”

The applicant then brought an action for judicial review in the Split County Court (Županijski sud u Splitu) against the Ministry’s decision, maintaining that the amount of compensation for the nationalised land had not been established in accordance with the relevant legislation (see paragraph 16 above). He requested HRK 11,199,192 for the land in question.

By a judgment of 26 March 2007 the Split County Court dismissed the applicant’s action, endorsing the reasoning given by the Ministry. The relevant part of that judgment reads as follows:

“It is undisputed that in the present case the compensation for the immovable property ... the plaintiff was dispossessed of must be determined in accordance with [section 46 of the 1994 Expropriation Act] given that he was dispossessed of [that] property by the final decisions ... of the Split Municipality of 15 February and 10 November 1983 and because ... a final decision on compensation has not been rendered [before the entry into force of the 1994 Expropriation Act].

When compensation ... is being determined by applying section 46 of the [1994] Expropriation Act it must be fixed with regard to the state of the immovable property and the modes of its usage at the time of deprivation and the market value [of such property] ... at the time the compensation was being determined (section 33 of the [1994] Expropriation Act).

In determining level of compensation the administrative authorities assessed all the relevant circumstances, in particular the state of the immovable property at the time of deprivation (construction land without any infrastructure) [and] market supply and demand of the land of the same or similar characteristics ... at the time of assessing its value. ...

[Therefore,] by fixing the compensation for the immovable property the plaintiff had been dispossessed of at HRK 7,338,715.80 the first- and the second-instance administrative authority correctly applied section 33 of the [1994] Expropriation Act.”

The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske) against that judgment, reiterating his previous arguments.

By a judgment of 29 April 2008 the Supreme Court dismissed the applicant’s appeal on points of law, endorsing the reasoning of the Split County Court and the Ministry. The relevant part of that judgment reads as follows:

“As regards the plaintiff’s arguments that the compensation was not determined in accordance with the market value [of the land] at the time of adoption of the first-instance decision ... the County Court was correct to agree with the findings of the first- and the second-instance [administrative authority] whereby those arguments had been dismissed as unfounded.

In so doing sufficient reasons were given, the evidence submitted by the plaintiff was examined and it was established that the data submitted [by the plaintiff] concern the immovable property which significantly differ (in terms of infrastructure) from that he had been dispossessed of. For that reason it was not possible to compare the state and the current market value of that immovable property with the state of the immovable property the plaintiff had been dispossessed of in 1983.”

By a decision of 29 September 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s subsequent constitutional complaint.

Federal Act Designating the Construction Land in Towns and Urban Areas

The relevant provisions of the Act Designating the Construction Land in Towns and Urban Areas (Zakon o određivanju građevinskog zemljišta u gradovima i naseljima gradskog karaktera, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 5/68 and 20/69), which entered into force on 15 February 1968, read as follows:

Section 1

“The construction land as defined in the Nationalisation of Rental Buildings and Construction Land Act [located] in towns and urban areas shall become [land] in social ownership under the conditions set out in this Act.

Former owners of the construction land shall have the right to a fair compensation in accordance with the Expropriation Act.”

Section 2(1)

“The construction land in towns and urban areas shall be specified by ... legislation [enacted by the constituent republics of the SFRY].

Section 3(1)

“Former owner of undeveloped construction land shall have the right to use it until the day he or she has, on the basis of the decision by the relevant authority, to surrender it to its [new] user.”

By the Act Designating the Construction Land in Towns and Urban Areas (Zakon o određivanju građevinskog zemljišta u gradovima i naseljima gradskog karaktera, Official Gazette of the Socialist Republic of Croatia no. 30/68), which entered into force on 8 August 1968, Croatia fulfilled its obligation stemming from section 2(1) of the above federal legislation (see the preceding paragraph) and specified construction land in Croatian towns and urban areas, including the town of Split, which had been nationalised by the operation of law (ex lege).

Construction Land Act

The relevant provision of the Construction Land Act (Zakon o građevinskom zemljištu, Official Gazette of Croatia no. 54/80 with subsequent amendments), which was in force between 8 January 1981 and 31 December 1996, at the material time read as follows:

Section 32(1)

“The former owner of the construction land which became land in social ownership shall have the right to a fair compensation which shall be determined in the manner and in the procedure prescribed by the Expropriation Act”

Section 35(1)

“The decision to take the construction land from the possession of its former owner or its user, as well as to award that land for use [to a new user] in accordance with this Act shall be made by [the municipality] after having conducted the proceedings provided in this Act.”

The 1994 Expropriation Act

The relevant provisions of the Expropriation Act (Zakon o izvlaštenju, Official Gazette of the Republic of Croatia no. 9/94 with subsequent amendments), which was in force between 18 February 1994 and 25 June 2014, read as follows:

Section 33

“(1) ... compensation [for the expropriated immovable property] shall be awarded as a sum of money equivalent to the market value of the expropriated immovable property at the time of the adoption of the first-instance decision on expropriation or at the time of reaching a settlement.

(2) The market value is the price which an immovable property can obtain on the market, dependent on supply and demand at the time of its determination.”

Section 46

“This Act is applicable to all pending expropriation proceedings in which, before this Act’s entry into force, a final decision has not been adopted, as well as to compensation proceedings in which a final decision has not been adopted or has been annulled or quashed.”

Section 47(1)

“Provisions of this Act concerning determination of compensation for expropriated immovable property shall apply mutatis mutandis to cases where the expropriation was carried out in accordance with the expropriation legislation in force before 22 March 1978, if the compensation was not paid before this Act’s entry into force ...”

According to the opinion by the plenary session of judges of the Administrative Court (Upravni sud Republike Hrvatske) held on 19 December 1998, the administrative authorities when applying sections 46 and 47 of the 1994 Expropriation Act, that is, in determining compensation for the immovable property expropriated before that Act’s entry into force, had to take into account (a) the state of the property at the time of expropriation, and (b) the market value of such property at the time the compensation was being determined. The conclusion reads as follows:

“When compensation for the expropriated immovable property is being determined by applying sections 46 and 47 of the Expropriation Act, [it] shall be determined according to the state of the immovable property at the moment of expropriation but in accordance with the market value at the time of fixing the compensation (section 33 of the [1994] Expropriation Act).”

In its judgment no. Us-2034/1996 of 22 August 1996 the Administrative Court held that sections 46-47 of the 1994 Expropriation Act applied also to those cases where an immovable property (in that case, the construction land) had been appropriated by means other than expropriation (for example, by nationalisation) and its owner dispossessed of it, and the law in force at the time of the dispossession provided for compensation that had to be determined pursuant to expropriation legislation, which compensation had not been fixed or paid before the entry into force of the 1994 Expropriation Act.


No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1982 and lives in Switzerland. He grew up in Iran and entered Switzerland in 2009.

The applicant applied for asylum under the name of L.B. on 13 August 2009, stating that he had entered Switzerland illegally the same day. He was questioned twice, on 18 August and 24 August 2009, by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the authority was called the Bundesamt für Migration, but it was renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the asylum authorities”). An interpreter was present at both hearings and the record was translated for the applicant prior to his signing it. A member of a non-governmental organisation was present at the second hearing as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing about any irregularities, but he made no such observations.

During the hearings the applicant stated that he had attended a number of demonstrations in connection with the presidential election in 2009. He had been arrested during one such demonstration on 15 June 2009 in I. He was subsequently placed in prison, where he was severely tortured every day. After twenty-two days in prison, he was scheduled to appear in court on 6 July 2009. He was placed in a bus with about thirty-five other people but managed to escape during a disturbance caused by one of the other detainees when disembarking from the bus. He then managed to hide with his relatives. After his escape, the authorities had sent a court summons to his home and, when he had failed to appear, the court had sentenced him in absentia to thirty-six months’ imprisonment. He managed to leave the country on 25-26 July 2009 with the help of a smuggler. In support of his account, the applicant submitted copies of his identity card, a court summons of 9 July 2009 and a judgment of 21 July 2009. He explained that the judgment had been sent to his home and that a neighbour had given it to him prior to his departure.

On 4 February 2013 the asylum authorities rejected his asylum application and ordered him to leave Switzerland, finding that his account was not credible as it was contradictory and, in relation to key aspects, not sufficiently substantiated. Despite repeated questions, the applicant had been unable to describe what he had experienced during his imprisonment in a detailed and differentiated manner. He had also contradicted himself regarding his transportation from the prison to court and his escape. Neither his alleged arrest in connection with his participation in a demonstration nor his subsequent detention and escape therefrom had been credible. The documents submitted by the applicant could not lead to a different result as they could easily be bought in Iran and falsified. Moreover, the alleged conduct of the Iranian authorities in sending a court summons to the applicant’s home after his escape, rather than going there to arrest him on the spot, was not credible, nor was his submission that the judgment of 21 July 2009 had been sent to his home and given to a neighbour prior to his departure.

As the applicant did not appeal, the decision became final.

On 13 November 2013 the applicant, through a lawyer, lodged an application for his asylum application to be reconsidered. He was by that time using the identity of A. and stated that he had entered Switzerland legally under that name in May 2009 based on a visa to visit his sister, who lived there. In substance, he stated that his relationship with his father had broken down entirely and that as a result he risked being arrested upon his return because his father had ties to the secret service. Moreover, he had been baptised as a Christian on 25 August 2013. Emphasising that Iran applied the death penalty for apostasy, he alleged that he was at risk of illtreatment on account of his conversion. He submitted a copy of his baptism certificate, issued by a Pentecostal church, a Protestant house church, to support his account.

On 17 January 2014 the asylum authorities, who treated the applicant’s request as a second asylum application, questioned the applicant in person. An interpreter was present and the record was translated for the applicant prior to his signing it. A member of a non-governmental organisation was present as a neutral witness in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing if he witnessed any irregularities, but did not make any such observations.

During the hearing, the applicant stated that he had first had contact with a Catholic church in Switzerland in 2011 and then with the Pentecostal church from early 2013. The members of the latter had gradually become his family. One of them had invited him home once or twice a week to familiarise him with the Bible. He had regularly attended church services and after about six or seven months had been baptised in that church. For him, being a Christian meant believing in Jesus Christ and spreading his message. He stated that he continued to study the Bible and recited parts of it. The principle of honesty enshrined in Christianity was particularly important to him. Even if he were unable to manifest his belief in the future, he would always retain the truthfulness of his faith, which nobody could take away from him. He submitted statements that he had attended different churches to support his account. The applicant did not make any submissions regarding the risk allegedly caused by the broken relationship with his father and the latter’s ties to the secret service.

On 26 February 2014 the asylum authorities rejected the applicant’s application. They considered that his conversion to Christianity did not in and of itself expose him to a real risk of ill-treatment. Such a risk could exist if he proselytised or attracted public attention in another way. Based on his statement, they considered that he did not intend to practise his faith in such a manner. There were no indications that the Iranian authorities were even aware of his conversion. They also doubted that the applicant’s conversion was genuine and lasting, noting, in particular, that it had occurred after the applicant’s first asylum application had been rejected, that the baptism had taken place in a house church rather than a church recognised by the State, and that the applicant did not base his conversion on the key aspects of Christianity, but on the personal relationships he had formed with members of his church community.

On 31 March 2014 the applicant, represented by a lawyer, appealed against that decision. He pointed out that there had been an increased number of arrests of members of Christian house churches since 2010 and argued that his conversion to Christianity in and of itself exposed him to a real risk of ill-treatment. A Christian convert faced a much greater risk of ill-treatment than those born into the Christian religion. His conversion to Christianity was genuine and lasting. He had first had contact with a Catholic church in Switzerland in 2011 and was serious in practising his faith, as evidenced by the documents he had submitted.

On 14 May 2014 the Federal Administrative Court dismissed the applicant’s appeal as manifestly ill-founded. It expressed doubts as to whether his conversion had been genuine or was lasting, but found that this did not have to be determined. It considered that a person could only face a real risk of ill-treatment upon return to Iran if that person’s Christian faith had been manifested in Switzerland in such a way as to make it visible to the outside and if it could be assumed that his or her family and acquaintances in Iran would learn about that active manifestation of faith, even if it was short of proselytising. If close family members were “fanatic” Muslims, they might denounce the conversion to the secret service. In addition, conversion to Christianity might be seen as treason. Where a conversion had taken place abroad, there had to be both an assessment of whether it was genuine and the extent to which it had become publicly known. Even assuming that the applicant’s conversion had been genuine and was lasting, the court considered that he did not manifest his Christian faith in the manner described. There were no indications that the Iranian authorities had even become aware of his conversion.

On 2 May 2016 the applicant, through a lawyer, lodged an application for temporary admission under section 83 of the Aliens Act. He relied on the risks presented by the Iranian authorities and non-state actors on account of his conversion and active membership of a Christian community in Switzerland, as well as his participation in a demonstration in Berne in August 2015 against human rights violations and the persecution of Christians by the Iranian authorities. In that connection, he had signed a letter of protest addressed by the organisers to the Iranian Government, which were thus aware of his conversion. To support his account he submitted photographs, letters of support from various persons and several reports.

On 14 June 2016 the asylum authorities rejected his application, which they had treated as a further asylum application. They noted that the applicant had previously been through two sets of asylum proceedings and that the alleged risk of ill-treatment on account of his conversion to Christianity had already been examined. It was not necessary to examine the matter again as the applicant had not put forward any arguments that could give rise to an assessment that was different from that of the Federal Administrative Court in its judgment of 14 May 2014.

It was true that the Iranian authorities took an interest in the activities of their citizens abroad, but such monitoring was focused on people who stood out from the large number of Iranians critical of the Government and who were perceived as a serious threat by the authorities because of their political or religious activities. Whether a person “stood out” was not so much a question of visibility and the possibility of identifying the person concerned, but was rather one of public exposure. The personality of the individuals concerned, the form of their appearances in public and the content of their public statements were relevant parameters in that regard. The asylum authorities considered that mere participation in a demonstration against the Iranian Government, without the applicant acting in a particular manner or holding a special function, was not sufficient for him to be perceived as a concrete threat by the Iranian authorities. They also noted that there were no indications that the authorities had taken any measures against him.

The Iranian authorities were aware that Iranian citizens at times attempted to rely on conversion to Christianity abroad in order to obtain refugee status in Western countries. Such circumstances would be taken into account by the Iranian authorities but would not, upon someone’s return, lead to ill-treatment within the meaning of the refugee definition. Moreover, it was possible to practise religions other than Islam in Iran in a discreet and private manner. Citing the criteria contained in the Federal Administrative Court’s judgment of 14 May 2014, the State Secretariat for Migration did not contest, per se, the fact that the applicant was part of a Christian circle in Switzerland. There were, however, no indications that he was involved in a leading function or was particularly exposed in other ways in connection with his Christian faith. His participation in a demonstration and the signing of a letter of protest to the Iranian Government did not lead to a different conclusion. He was only an ordinary member of a Christian organisation and there was, therefore, no concrete risk that the Iranian authorities had become aware of his conversion. The asylum authorities concluded that the applicant did not meet the requirements of the refugee definition or those for temporary admission.

On 13 July 2016 the applicant lodged an appeal against that decision, in substance repeating his earlier submissions. On 30 August 2016 the Federal Administrative Court dismissed the appeal as manifestly illfounded, fully endorsing the asylum authorities’ reasoning.

On 4 October 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 31 October 2016.