Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1944. He is currently detained in Istanbul.

The applicant is a journalist who had been working since 2002 for the daily newspaper Zaman, which was viewed as the principal publication medium of the “Gülenist” network and was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below). From 2001 onwards, he also lectured on comparative politics and Turkish political history at a private university in Istanbul.

In the years leading up to the attempted military coup of 15 July 2016 the applicant had been known for his critical views on the serving government’s policies.

During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey.

During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured.

The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation.

On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018.

On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15.

On 27 July 2016, in the course of one of the criminal investigations initiated in respect of suspected members of FETÖ/PDY, the applicant was arrested at his home in Istanbul and taken into police custody.

On 30 July 2016 the applicant, assisted by his lawyer, was questioned at the Istanbul Security Directorate. During the questioning the applicant denied that he belonged to an illegal organisation. Later that day, the Istanbul public prosecutor sought a judicial order for the applicant’s pre-trial detention on suspicion of belonging to an illegal organisation.

On the same day, several editors and columnists of the daily newspaper Zaman, including the applicant, were brought before the Istanbul 4th Magistrate’s Court. The magistrate questioned the applicant about his alleged acts and the accusations against him. The applicant stated that he had joined Zaman in order to be able to express his opinions; that he was in favour of a democratic system corresponding to European standards; that he was a secular person; that he had not been aware of the threat posed by Fetullah Gülen’s movement until after the attempted military coup of 15 July 2016; and that he was opposed to any attack on democracy.

At the end of the hearing, the magistrate, taking into account the contents of the articles written by the applicant – and finding that they had promoted the terrorist organisation in question, even after 17 December 2013 – ordered his pre-trial detention. He noted in that connection that although criminal proceedings had been instituted against E.D. (the editor-in-chief of Zaman) before the attempted military coup, the applicant had continued to work for the newspaper and within the organisation’s media structure. In the reasons given for ordering the applicant’s pre-trial detention, the magistrate took the following factors into consideration: the strong suspicions against him; the nature of the alleged offence and the fact that it was among the offences listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”, for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; the state of the evidence and the risk of its deterioration; and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings.

On 5 August 2016 the applicant lodged an objection against the order for his pre-trial detention. He argued that there was no justification for detaining him. He also contended that his state of health was incompatible with the conditions in the prison where he was being held. In a decision of 8 August 2016 the Istanbul 5th Magistrate’s Court dismissed the applicant’s objection.

On 17 October 2016 the applicant lodged a fresh application for his release. In a decision of 19 October 2016 the Istanbul 10th Magistrate’s Court rejected the application. In his decision, the magistrate stated in particular that it was an established fact that in order to prepare the ground for a military coup, the instigators needed to create the perception that the leaders of the country concerned were dictators. In his view, the applicant’s articles accusing the President of Turkey of being a dictator and calling for him to leave office had contributed to propaganda of that kind.

On 10 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, who were suspected of being part of the FETÖ/PDY media network, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code (“the CC”), of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor sought the imposition of three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the suspects, including the applicant. As evidence, he produced six articles written by the applicant in 2013 and 2014.

The public prosecutor submitted that the articles by the applicants and other individuals being charged in the same criminal proceedings against leading members of FETÖ/PDY’s media wing could not be regarded as an expression of the authors’ opposition to or criticism of the government. In the applicant’s case, the public prosecutor contended that the expressions he had used had gone beyond the limits of freedom of the press in that they had undermined the rights of the official authorities and endangered social peace and public order. The public prosecutor found that the applicant had not hesitated to call for a possible military coup in his articles and, in short, had discharged functions serving the interests of the terrorist organisation in question.

During the criminal proceedings, the applicant denied having committed any criminal offence.

The criminal proceedings are currently pending before the Istanbul 13th Assize Court.

On 8 September 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also contended that his state of health was incompatible with the conditions of his continued detention since he was suffering from benign prostate hyperplasia, hyperlipidaemia, hyperuricemia, a multinodular goitre and sleep apnoea. On that account he asked the Constitutional Court to indicate an interim alternative measure to detention, thus allowing him to be released pending trial.

In a decision of 26 October 2016 the Constitutional Court refused to apply an interim measure of that kind. In reaching that decision, it noted firstly that the applicant’s health had been regularly monitored from the start of his pre-trial detention, and that there was a State hospital inside the prison where he was being held. In that connection, it noted that on 4 October 2016, following a request he had made to that effect the previous day, the applicant had been examined in prison by a general practitioner and had then been transferred to the urology department of the State hospital, where he had undergone a medical examination on 20 October 2016, and that his next appointment had been scheduled for 22 March 2017. In those circumstances, the Constitutional Court found that keeping the applicant in pre-trial detention did not currently constitute a danger to his life or health. It added that should there be a change in his health or the conditions of his detention, he would be entitled to make a further application for an interim measure to secure his release.

On 11 January 2018 the Constitutional Court gave a judgment (no. 2016/16092) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press.

With regard to the applicant’s complaint concerning the lawfulness of his pre-trial detention, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled “As if it were a religious war” (“Din Savaşıymış”), published on 21 December 2013; (ii) an article entitled “The President must not remain a spectator” (“Cumhurbaşkanı Seyirci Kalamaz”), published on 24 December 2013; (iii) an article entitled “Between Erdogan and the West” (“Erdoğan ile Batı Arasında”), published on 28 December 2013; (iv) an article entitled “Yes, both the crime and the punishment are individual” (“Evet Suç da Ceza da Şahsidir”), published on 8 February 2014; (v) an article entitled “This nation is not empty-headed” (“Bu Millet Bidon Kafalı Değildir”), published on 1 March 2014; and (vi) an article entitled “The solution is a government without Erdoğan” (“Çıkar Yol Erdoğan’sız Hükûmet”), published on 29 March 2014. After examining the substance of these articles, the Constitutional Court found that they mainly dealt with matters relating to the “17-25 December [2013]” criminal investigations. In them the applicant had set out his opinion that the government members implicated in the criminal investigation in question should be brought to justice and that it was the responsibility of the President and the ruling party’s leaders to take action to that end. He had contended that the government’s reaction to the investigation had been unjust. The Constitutional Court also observed that the applicant had written that if the investigation in question had been carried out on the orders of suspected members of FETÖ/PDY, they too should be the subject of a criminal investigation. However, he had maintained that it was unfair to accuse all members of the Gülenist movement. The Constitutional Court further noted that in the articles in question, the applicant had not argued that the government should be overthrown by force. On the contrary, he had asserted that the ruling party would lose in the next elections. The Constitutional Court also found that the article published one day before the attempted military coup suggested that the applicant was opposed to coups d’état. It held that he had been expressing opinions on a topical issue that were similar to those of the opposition leaders. In the Constitutional Court’s view, the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY. It added that the fact that he had expressed his views in Zaman could not in itself be deemed sufficient to infer that the applicant was aware of that organisation’s goals. Accordingly, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the applicant’s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant’s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution, had been breached.

Next, with regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant’s initial and continued pre-trial detention on account of his articles amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles (see paragraph 140 of the Constitutional Court’s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 108-10 of the Constitutional Court’s judgment – see paragraph 32 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.

With regard to the applicant’s complaint that the conditions of his detention were incompatible with respect for human dignity, the Constitutional Court noted that he had access to the treatment required for his condition within the prison where he was being held, and declared this complaint inadmissible as being manifestly ill-founded.

The applicant did not submit a claim for compensation in respect of non-pecuniary damage. Accordingly, the Constitutional Court made no award under that head. The applicant claimed an unspecified sum in respect of the pecuniary damage he had allegedly sustained. The Constitutional Court found no causal link between the violation established and the damage alleged on that account and dismissed the claim. However, it held that the applicant was to be awarded 2,219.50 Turkish liras (TRY – approximately 500 euros (EUR)) in respect of costs and expenses.

As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 13th Assize Court so that it could take “the necessary action”.

On 11 January 2018 the applicant’s lawyer applied to the Istanbul 13th Assize Court for his client’s release.

On the same day, the Istanbul 13th Assize Court rejected the application, on the grounds that it had not yet received official notification of the Constitutional Court’s judgment.

On 12 January 2018 the Istanbul 13th Assize Court, having observed that the Constitutional Court’s judgment had been published on its website, examined of its own motion the question of the applicant’s pre-trial detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court’s judgment no. 2016/16092 was not in compliance with the law and amounted to usurpation of power (görev gasbı). Regarding the effects of the Constitutional Court’s judgments, the Assize Court added that only judgments that were in accordance with the Constitution and the law should be deemed to be final and binding. It noted, moreover, that more extensive reasoning could be given to justify keeping the applicant in pre-trial detention and that the file contained sufficient evidence against him in that regard. However, this would create the risk of prejudging the case (ihsas-ı rey), seeing that a detailed explanation of the reasons justifying continued detention could be seen as an expression of the judges’ opinions before they had determined the merits of the case. Accordingly, the Assize Court held that it was impossible to accept the Constitutional Court’s judgment. Lastly, reiterating that the judgment in question amounted to usurpation of power, it held, by two votes to one, that there was no need for it to give a decision on the applicant’s pre-trial detention.

The judge in the minority observed in his dissenting opinion that he agreed with the majority’s conclusion that the Constitutional Court’s judgment was not in compliance with the law. However, noting that the Constitutional Court’s judgments were final and binding on the Assize Court, he expressed the view that the applicant’s release should be ordered.

On 12 January 2018 the applicant lodged an objection with a view to securing his release.

In a decision of 15 January 2018 the Istanbul 14th Assize Court unanimously dismissed the applicant’s objection, essentially on the same grounds as the 13th Assize Court had done.

On 1 February 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court’s judgment of 11 January 2018.


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to impart information);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant is a non-governmental organisation that publishes Orlovskaya Iskra, a newspaper in the Orel Region. As of March 2003, the Orel branch of the Communist Party of the Russian Federation and the Orel branch of the People’s Patriotic Union of Russia, a nationwide movement, were listed as the applicant organisation’s founders. This information was specified on the front page of the newspaper.

Pursuant to the Articles of incorporation, the founders were in charge of setting up an editorial board and determining the editorial policy; in the case of disagreement on the editorial policy the matter was to be resolved by a meeting of the founders’ representatives.

During the election campaign for the State Duma, the lower chamber of Parliament, on 2 December 2007, the applicant organisation expressed to the Electoral Committee of the Orel Region (see paragraph 41 below) its intention to accept proposals for publication for a fee and, as required by law, published the fees applicable to the publications on behalf of political parties (30,000 roubles (RUB) per page). The applicant organisation specified that the above fee “was not applicable to the newspaper’s founder”. The applicant organisation signed a contract with the Communist Party for this purpose for publications on 7, 14, 21 and 28 November 2007. The contract mentioned a fee of RUB 30,000 per page; the total amount of the contract was RUB 300,000 for ten pages. Some of the publications in the applicant organisation’s newspaper on these dates did mention the Party’s sponsorship, others did not (see paragraph 8 below).

Apart from the publications mentioned above, on 7 and 14 November 2007 the applicant organisation’s newspaper also published, in the same weekly issues, two articles written by its staff correspondent, Ms O. Both articles were critical of Mr Stroyev, the then governor of the Orel Region and the former Chairman of the Federation Council (the upper chamber of the Russian Parliament). Governor Stroyev was a candidate at those elections: he was no. 1 on the regional list of United Russia (Единая Россия), a political party aligned with President Putin and dominant in the State Duma. The Communist Party was one of the main opposition parties at those elections.

The first article was entitled ‘Hatred, Stroyev style’. It can be summarised as follows. It described Governor Stroyev as a person consumed by hatred towards people who oppose him. The journalist referred to the decision of the governor to wind up a publicly owned newspaper, Gorod Orel. According to journalist O., that decision was a direct consequence of a conflict between Mr Stroyev and the newspaper’s former editor-in-chief who kept criticising Stroyev’s policies. The speaker of the municipal council, who was politically weak owing to a corruption scandal involving municipal land, was unable to oppose the decision of the governor to close the newspaper. Most of the regional journalists under Stroyev became servile; those few who, like the editor-in-chief of Gorod Orel, remained independent and refused to flatter Mr Stroyev, were subjected to pressure and fell victim to Mr Stroyev’s hatred. The article then turned to the story of two deputies of the regional legislature. They were elected as members of the Communist Party and were originally in opposition to Mr Stroyev, but later they both became members of United Russia. One of them was a businessman. The author suspected that the first deputy had changed political sides because of very serious pressure exerted by the Stroyev administration on local businessmen. The second deputy was a history professor. The article suggested that his decision to leave the Communist Party was also forced. The journalist ironically supposed that in fact Mr Stroyev did not want United Russia to win the elections, since he was doing everything to make the electorate angry with the ruling party. In 2006 the town population voted in large numbers for the Communist Party, which was in fact a vote of disapproval of Mr Stroyev’s policies. However, the journalist supposed that Mr Stroyev’s personal interests always prevailed over those of the United Russia party. The town mayor tried to protect himself by joining United Russia, but this was a weak defence against Mr Stroyev’s hatred. The only people Mr Stroyev loved and defended were his own relatives and protégés. The article cited the example of Mr Stroyev’s nephew, a businessman suspected of abuse of public funds and fraud. His case was still pending; the article suggested that regional law-enforcement agencies being discouraged from pursuing the investigation actively. The article then turned to the dismissal of the head of the regional public Audit Chamber, who reported on abuses of funds allocated for road maintenance. The newly appointed head of the Audit Chamber, who was Mr Stroyev’s man, came to the opposite conclusion, namely that the manipulation of the road funds had been perfectly in order. Nevertheless, the money had been spent; as a result, the federal authorities had had to allocate additional funds for road maintenance in the Orel Region. Mr Stroyev tried to get credit for that funding, but it was not United Russia’s money that had been used, as they claimed, but taxpayers’money. In the opinion of the author, by trying to present the whole situation as his personal achievement Mr Stroyev was making a fool of President Putin and of the population of the Orel Region.

The article had a long post-scriptum. It cited the European Court’s findings in the case of Chemodurov v. Russia (no. 72683/01, judgment of 31 July 2007). That case concerned a defamation claim lodged by a governor of another Russian region against a journalist of a local newspaper. The case ended with a finding of a violation of Article 10 of the Convention by the Court. The author alluded to similarities between her criticism of Mr Stroyev’s policies and the situation in the Chemodurov case.

The second article was entitled ‘Stroyev sues people: people sue Stroyev’. It also concerned several topics. It opened with the statement that the electorate of Orel Region did not trust the authorities and at the 2006 and 2007 elections preferred to support the Communist Party. Next, it touched upon the story of Ms Ch., a former forest inspector who was dismissed from her job as a result of a reorganisation of the forestry authority. Forty-two other workers of the forest authority also lost their jobs. The article alleged that the reform of the forest authorities was initiated by Governor Stroyev in breach of federal legislation. It suggested that the reform was driven by the need to facilitate industrial tree-cutting. Ms Ch. sued the regional authorities, and at the relevant time the proceedings were pending. However, in the opinion of the journalist, there was little hope for impartiality on the part of the regional courts. The article then turned to the case of Ms G., who had made statements critical of the governor during a public rally and had been prosecuted for slander. The article then analysed recent public statements of the governor, who had criticised the policy lines of former President Yeltsin, whereas he himself during that period had been Chairman of the Federation Council, and therefore the second most important statesman in the country. According to the journalist, the proceedings in the case of Mr G. were adjourned, probably because Governor Stroyev wanted to avoid a scandal before the date of elections. The article closed with the suggestion that President Putin should not have associated himself such controversial figures as Governor Stroyev.

On 17 November 2007 the Working Group on Informational Disputes of the regional Electoral Committee examined both articles. The Working Group concluded that the articles contained elements of electoral campaigning (агитация). The Working Group concluded as follows:

The publications contained “negative, purposeful, systematically published information about a member of the High Political Council of the United Russia political party ... Mr E. Stroyev. The above-mentioned publications have created a negative attitude on the part of the voters towards ... United Russia. Although the text of the articles does not call for people to vote for or against United Russia, all the electorate understand that this is in fact counter-campaigning [against Mr Stroyev]”. The publications “did not correspond to the current information policy of the organisations editing mass media”, which (the policy) was “aimed at informing the voters about the development of the electoral campaign ... [and] about the political parties participating in it”. Those articles, in the opinion of the Electoral Committee, fell “outside the information space created by the political parties during the ongoing electoral campaign”. The publication of those articles was not paid for from the official campaign fund of any party participating in the campaign, contrary to section 52 § 6 of the Electoral Rights Act of 2002.

Consequently, in the opinion of the Electoral Committee, publication of those articles amounted to a breach of electoral law punishable by a fine in accordance with Article 5.5 of the Federal Code of Administrative Offences (CAO).

The official of the Electoral Committee compiled an administrative offence record against the applicant organisation, referring to the legislative provisions defining “campaigning” (see paragraph 40 below):

“[The applicant organisation] has committed an administrative offence: publications on 7 and 14 November 2007 containing elements of election campaigning as defined in sections 10 and 55 § 1(6) of the State Duma Deputies Elections Act” ...

Liability for this offence is prescribed under: Article 5.5 § 1 of the CAO.”

The case was then submitted to a justice of the peace. On 29 November 2007 the justice of the peace examined the case. At the hearing the editor-in-chief of the newspaper explained that both articles were informational in essence and were not a part of the election campaign. They reflected the author’s opinion of Governor Stroyev. Consequently, there was no need for those articles to be paid for from any candidate’s campaign fund.

The judge held that, according to the State Duma Deputies Elections Act of 2005, taken in conjunction with the Electoral Rights Act, “election campaigning” meant publications where information about one of the candidates prevailed and was combined with negative comment about him or her. Having studied the impugned articles the judge agreed with the Electoral Committee that they primarily concerned candidate Stroyev, and secondly were negative. The judge concluded that those articles were in substance election “campaigning”. Such material should either have been paid for from the campaign fund of one of the candidates or have been published free of charge; in any event, the newspaper had been required to indicate who had sponsored the publication. No such mention had been made in the articles. Consequently, the publication of both articles amounted to a breach of the electoral law. The applicant organisation was therefore found guilty of the administrative offence described in Article 5.5 § 1 of the Code of Administrative Offences of 2001 (hereinafter “the CAO”). The justice of the peace ordered the applicant organisation to pay a fine of 35,000 roubles (RUB, equivalent to 1,000 euros (EUR) at the time).

The applicant organisation appealed to the Zheleznodorozhny District Court of Orel. On 27 December 2007 it heard the applicant organisation’s representatives and rejected the appeal. The relevant extract from the judgment reads as follows:

“Having regard to the fact that the publication of the above articles took place during an election campaign period, the judge considers that the above-mentioned articles contained elements of election campaigning, and therefore could be described as campaign literature. This conclusion is supported by the words of the representatives of the newspaper ... who acknowledged that the articles contained criticism of Governor Stroyev ...”

The appeal decision entered into legal force on the same date.

On unspecified dates the applicant organisation received a copy of this decision and lodged a supervisory-review application with the President of the Orel Regional Court. The scope of that application remains unclear.

Without holding a hearing, on 29 January 2008 the acting president of the court issued a decision dismissing the application. The reasoning of the decision of the acting president was identical to that of the lower courts. On an unspecified date the applicant organisation received a copy of the acting president’s decision.

The applicant organisation then lodged a supervisory-review application with the President of the Supreme Court of Russia. The scope of this application remains unclear. On 19 June 2008 the Vice-President dismissed it. On an unspecified date the applicant organisation received a copy of this decision.

On an unspecified date the applicant organisation introduced an individual application before the Constitutional Court of Russia, arguing that the impugned provisions of the Electoral Rights Act and the State Duma Deputies Election Act ran counter to freedom of the press. The Acts de facto regarded any critical material published during a pre-election period as “campaigning”, and imposed additional requirements on such publications.

By a letter of 23 October 2008 the Registry of the Constitutional Court informed the applicant organisation that its application was not allowed because, in substance, it was merely challenging the factual and legal findings made by the courts in the administrative offence case.

On an unspecified date the applicant organisation resubmitted its application to the Constitutional Court. On 25 December 2008 a panel of judges of the Constitutional Court issued a decision (определение) refusing examination of the application. It held as follows:

“In its ruling of 30 October 2003 the Constitutional Court made the following statement of principle concerning a distinction between information for voters and pre-election campaigning. To protect the right to free elections, freedom of expression on the part of the mass media may be restricted, provided that the balance of constitutional values has been respected ...

[The Electoral Rights Act] distinguishes between information for voters appearing in the mass media and pre-election campaigning by them. Both information and campaigning can influence voters to make certain choices, thus the obvious and only criterion to distinguish between them would be the existence of a particular aim, namely to incline voters to support or oppose a certain candidate ... Without such an aim in mind there would be no dividing line between information and campaigning, to the effect that all information would amount to campaigning. This would go against the constitutional guarantees of freedom of information and freedom of expression ...

It is incumbent on the courts and other authorities to establish that there is a campaigning aim in each case ... Thus, in view of the above statement of principle, the impugned legislative provisions cannot be considered to have violated the applicant organisation’s rights or freedoms ... Establishment of the specific circumstances (whether or not the information provided by the applicant organisation concerned the electoral campaign rather than the reporting on the candidate’s professional activity as a governor) are beyond of the Constitutional Court’s competence ...”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1946 and lives in St Petersburg.

According to the applicant’s medical history he has suffered from various mental conditions since 1979 and has been admitted to hospital and treated in various psychiatric facilities several times. The applicant’s records contain information on alcohol abuse, suicide attempts, threats of violence against neighbours and medical professionals, and about a number of organic, psychiatric and personality disorders, including psychosis and paranoia.

Between 1998 and 2007 the applicant was taken to hospital at least six times following suicide attempts, alcohol-induced paranoia, claims of unspecified murder threats, claims about explosives planted in various public places and threats to neighbours that he would blow up a petrol canister.

According to a report issued on 29 March 2007 by the local ambulance service the applicant called for emergency assistance at his home twelve times in March 2007 (five times on 28 March 2007 alone). On each occasion there was no apparent reason for the call. The applicant behaved aggressively towards medical personnel, made sexual advances to female doctors and consumed alcohol in their presence. The service requested a police escort for further visits to his address. They stated that visits to the applicant meant there were delays in providing assistance to people who were in genuinely life-threatening situations and presented a danger to ambulance staff.

According to a police report of 2 April 2007 the applicant contacted the police three times in two days alleging that nomadic tribes had attacked him, that he had found an unexploded Second World War shell, and that explosives had been placed at an industrial facility. The applicant’s alerts were acted upon and found to be groundless.

On 3 April 2007 the applicant was admitted without his consent to St Petersburg Psychiatric Hospital no. 3 (Психиатрическая больница № 3 г. Санкт-Петербурга) (“the hospital”). The grounds for his admission were repeated, groundless telephone calls to the police about the presence of explosives at an industrial facility, a series of calls to the emergency medical services with offers of sexual services to female doctors, as well as threats of violence against ambulance staff. The applicant refused to be treated or admitted to hospital voluntarily.

On the same day a panel composed of the hospital’s resident psychiatrists examined the applicant and his medical history and diagnosed him with an organic mental disorder coupled with a psychiatric and paranoid personality disorder. The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the likely deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The relevant parts of the panel’s report read as follows:

“The patient had a habit of intoxicating himself heavily with alcohol, and suffered from a cranial trauma. Psychiatric disorders since 1979. Clinical history [shows] behavioural problems including affective instability, querulous ideas about his own relevance and persecution amounting to delusions. [He] has been frequently treated in psychiatric facilities owing to aggressive and auto-aggressive habits in the context of acute morbid emotional experiences. Admissions to hospital were, as a rule, ‘involuntary’.

In the course of clinical development the organic defects have become predominant manifesting themselves through circumstantiality, a coarsening of emotions, and the exacerbation of his querulous tendencies. The current admission is due to inappropriate behaviour: informed the police that explosives had been planted somewhere, conflicts with [nomadic tribes], called for emergency medical services and when they arrived threatened the personnel, behaved improperly towards women.

During examination – fully aware of his surroundings, answers questions in detail. ‘Ingratiating’. Believes that he is being persecuted by police because he is ‘a person of the Stalinist era, and they do not want to work’, shows an uncritical attitude towards [his] own behaviour, does not correct ideas of own relevance and persecution. Denies perceptual illusions.

Having regard to the lack of a critical attitude towards his improper behaviour, the presence of ideas about his own relevance and persecution, [it] can be concluded that he falls under section 29 (a) and (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens’ Rights Related to Its Administration of 1992 (“the Psychiatric Assistance Act 1992”).”

On 4 April 2007 the hospital applied for a court order for the involuntary placement of the applicant in a hospital under section 29 (a) and (c) of the Psychiatric Assistance Act 1992 as the applicant was a danger to himself and others and risked significant damage to his health from a likely deterioration or aggravation of his condition if there was no psychiatric treatment.

On 9 April 2007 the Primorskiy District Court of St Petersburg (Приморский районный суд г. Санкт-Петербурга) granted the application to admit the applicant to hospital without his consent. The hearing was attended by the applicant, a court-appointed lawyer, Mrs L., the psychiatrists, and the prosecutor. During the hearing the District Court examined the applicant’s medical history and heard the testimony of the psychiatrists, who referred to severe alcohol abuse, erratic behaviour, frivolous calls to the police, and threatening conduct towards medical personnel. The trial record indicates that during the hearing the applicant claimed that informing the police about the alleged presence of explosives at a factory was his civic duty, complained about hospital regime and facilities and referred to his friendship with certain media personas in Russia.

The relevant parts of the court order authorising the applicant’s treatment read as follows:

“... The recommendation for admission to hospital was issued ... due to the presence of a severe psychiatric disorder, which can cause significant damage to [his] health due to a deterioration or aggravation of the psychiatric condition in the absence of psychiatric help.

Mr V.K. did not consent to his admission to hospital since he refused treatment.

On 3 April 2007 he was examined by a panel of psychiatrists, who established that [he is] aware of his surroundings, answers questions in detail, believes that he is being persecuted by the police because he is ‘a person of the Stalinist era, and they do not want to work’, shows an uncritical attitude towards [his] behaviour, does not correct his ideas of his own relevance and persecution, denies perceptual illusions. On the basis of their observations the panel concluded that the treatment of Mr V.K. as an inpatient is necessary. The court has no grounds to doubt the conclusions of the panel’s report. There is no evidence to the contrary.

Having considered the evidence in the case, having heard the opinion of the doctors, of the lawyer, Mrs L., who considered inpatient treatment to be reasonable, and the opinion of the prosecutor ... the court concludes that the application of the Hospital’s chief physician is well-founded because Mr V.K. suffers from a severe disorder which indicates a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric help.”

On 20 April 2007 the applicant was formally discharged from hospital after an improvement in his mental health.

On 25 April 2007 the applicant, represented by Mr D. Bartenev, a lawyer practising in St Petersburg, lodged an appeal against the order of 9 April 2007, stating, inter alia, that the legal aid lawyer Mrs L. had failed perform her functions properly. On the same day the applicant left hospital.

On 2 August 2007 the applicant’s appeal was summarily dismissed in a short decision by the St Petersburg City Court (Санкт-Петербургский городской суд). The relevant parts read as follows:

“ ... In granting the application the [lower] court concluded that there were good reasons to place Mr V.K. in hospital against his will.

The court’s conclusion relied on the evidence that had been submitted to it ... [It is] proven by the report of the panel of the Hospital’s resident psychiatrists, which describes Mr V.K.’s condition and confirms the existence of a severe psychiatric disorder indicating a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance.

The arguments in the statement of appeal that legal aid lawyer Mrs L. did not duly discharge her professional functions may not serve as a ground for annulment of the order, which is lawful on the merits ... ”

Nothing in the materials available to the Court suggests that the applicant had ever been restricted in his legal capacity or appointed a legal guardian.


CASE OF BONDARENCO v. THE REPUBLIC OF MOLDOVA

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

The applicant was born in 1958 and lives in Chișinău.

In 1989 the Chişinău Local Council let an apartment to the applicant. In 2000 the Local Council declared the building in which the applicant had been renting the apartment to be under threat of collapse and on an unspecified date it was demolished. The applicant brought an action against the Chişinău Local Council seeking the allocation of an apartment in lieu of the old one.

By a final judgment of 18 March 2003 the Rîşcani District Court ruled in favour of the applicant and ordered the Chişinău Local Council to provide her with an apartment.

Between 2003 and 2004 she lodged numerous complaints about the failure to enforce the judgment in her favour to no avail. The judgment of 18 March 2003 of the Rîşcani District Court has not been enforced to date.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

On 31 July 2000 the applicant company entered into a contract with a sole trader, Ms T.Z., to jointly operate a billiards club. The contract stipulated, in particular, that the sole trader would operate the club against an undertaking on the part of the applicant company to supply the club with alcohol. The contract also made provision for the manner in which profits would be shared between the parties, and set out penalties in case of breach.

On 7 August 2000 the applicant company obtained a licence to sell alcoholic beverages in the billiards club.

On 18 January 2001 the applicant company entered into a similar contract with another sole trader, Ms V.G., for the joint operation of an electronic games club. At that time the applicant company had already obtained a licence to sell alcoholic beverages in that club.

Both the billiards club and the electronic games club were operated in premises leased by the applicant company.

On 3 July 2002 the tax authorities carried out an inspection at the billiards club. They found that the sole trader, Ms T.Z., was selling alcohol without the requisite licence. The next day, 4 July 2002, the authorities drew up a report accusing her of trading in excise goods without the requisite licence, contrary to section 17a(2) of the Excise Act 1994 (see paragraph 23 below), and impounded the alcohol (eighteen bottles) that they had found in the club. The applicant company was not notified of those events.

On 8 July 2002 Ms T.Z. objected to the report, saying she had been selling the alcohol on behalf of the applicant company, which had a licence to do so. She further claimed that the impounding had been unlawful.

On 16 July 2002 the regional tax director dismissed the objection, observing that the impounding could not be challenged separately as it had been ancillary to the opening of administrative-penal proceedings and had amounted to a measure intended to prevent tampering with evidence. On an appeal by Ms T.Z., on 25 October 2002 the Dobrich District Court upheld that decision, finding that the impounding could not be challenged in separate judicial review proceedings; only the penal order which would conclude the administrativepenal proceedings was capable of being challenged by way of judicial review.

In the meantime, on 17 July 2002 the regional tax director issued a penal order against Ms T.Z. The penalties imposed thereby were a fine and forfeiture of the impounded alcohol. The applicant company was not served with a copy of the order.

Ms T.Z. sought judicial review of the order. On 29 January 2003 the applicant company applied to intervene in the proceedings as a third party, arguing that it was the owner of the forfeited alcohol. The next day, 30 January 2003, the Dobrich District Court discontinued the judicial review proceedings, finding that Ms T.Z.’s application was out of time.

A subsequent appeal by the applicant company against the discontinuance was rejected by the Dobrich District Court on 17 February 2003 on the grounds that, not being a party to the proceedings, the company did not have standing to appeal against their discontinuance. On an appeal by the applicant company, in a final decision of 22 April 2003 the Dobrich Regional Court upheld that decision, holding that the company did not have standing to intervene in the proceedings. The court found it irrelevant to now discuss whether or not the company could have claimed to be a victim of the administrative offence. Ensuing attempts by the company to obtain reopening of the proceedings were unsuccessful.

On 3 July 2002 the tax authorities carried out an inspection at the electronic games club jointly operated by the applicant company and Ms V.G. They found that Ms V.G. was selling alcohol without the requisite licence. The next day, 4 July 2002, they drew up a report accusing her of trading in excise goods without the requisite licence, contrary to section 17a(2) of the Excise Act 1994 (see paragraph 23 below). They impounded the alcohol (fortysix bottles) that they had found in the club. The applicant company was not notified of those events.

Ms V.G. sought judicial review of the impounding, arguing that she had been selling the alcohol on behalf of the applicant company, which had a licence to do so. On 23 October 2002 the Dobrich District Court rejected her application as inadmissible, holding that the impounding could not be challenged in separate judicial review proceedings; only the penal order which would conclude the administrativepenal proceedings was capable of being challenged by way of judicial review.

In the meantime, on 19 August 2002 the regional tax director issued a penal order against Ms V.G. The penalties imposed thereby were a fine and forfeiture of the impounded alcohol. The applicant company was not served with a copy of the order.

The sole trader sought judicial review of the order.

At a hearing held on 4 November 2003 the applicant company applied to intervene in the proceedings as a third party, arguing that it was the owner of the forfeited alcohol. However, the Dobrich District Court turned its application down, finding that it had not been party to the administrative-penal proceedings. It held that the business relations between the applicant company and Ms V.G. were irrelevant for the proceedings. It also instructed the applicant company to bring separate proceedings in the civil courts.

On 10 February 2004 the Dobrich District Court upheld the penal order. It found that the alcohol had been properly forfeited. It reiterated that considerations concerning the business relations between Ms V.G. and the applicant company were irrelevant for the administrativepenal proceedings. The Dobrich Regional Court upheld that judgment in a final judgment of 7 June 2004.


CASE OF TAVARES DE ALMEIDA FERNANDES AND ALMEIDA FERNANDES v. PORTUGAL

Remainder inadmissible (Article 35-3 - Ratione personae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque

The applicants are husband and wife. They were both born in 1957 and live in Colares.

The first applicant is a well-known journalist in Portugal. At the time in question he was the editor of the daily newspaper Público.

On 29 September 2006 the newspaper published an editorial written by the first applicant entitled “The strategy of the spider” (“A estratégia da aranha”); the editorial addressed the election of the President of the Supreme Court of Justice, which had taken place the day before. The article expressed the first applicant’s opinion of the newly elected President, Judge N.N., and on what his election meant for the Portuguese judicial system. The first applicant’s editorial reads as follows:

“The strategy of the spider

N.N., the man who will be presiding over the Supreme Court, represents the dark side of our judiciary.

Do you want a symbol, a representative, an exemplar of the wrongs of the Portuguese judicial system? That’s easy: simply mention the name of N.N. and all the wrongs you can think of regarding corporatism, conservatism, atavism, manipulation, games of shadows and influence immediately spring to mind.

The judge – because we are talking about a judge – is a man as intelligent as he is Machiavellian. For years, first in the Trade Union Association of Judges [Associação Sindical dos Juízes], then [as a member of] the High Council of the Judiciary [Conselho Superior da Magistratura – hereinafter “the HCJ”], and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of Portuguese people have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word, but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice. The position is not worth very much (who, among the readers, knows that the current president of that court is, formally, the fourth-highest-ranking figure of State?). It carries some sinecures, perhaps some perks ... but it has little effective power.

The problem, however, lies in this question: has, or will have [effective power]? The gentlemen judges, who some time ago engaged in a dispute with [the judges of] the Constitutional Court to determine who occupied the more important place in the hierarchy (those of the Supreme Court won ... but gave to those of the Constitutional Court the consolation of having at their disposal a high-end car ...) aren’t even much respected. [That is] their own fault, as it is known that they occupy their seats in the Supreme Court only for some months in order to beef up their pensions. The president of that giant college of most reverend judges has had little power; [however,] ... N.N. presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him – under the kind of manifesto which makes the hair of the most peaceful citizen stand on end. The man didn’t do this out of the goodness of his own heart: at the same time that he was acting as a trade unionist (he asked for an increase in his salary and that less work be given to judges ...) he acted as someone who wanted to overthrow the regime (by wanting to sit on the Council of State [Conselho de Estado]) and added the glittering (due to the amount of accumulated tallow) hat of “resister” of reforms in the judicial sector. If it was advisable for a President of the Supreme Court to pay greater attention to Montesquieu and the principle of the separation of powers than to the playbook of the CGTP [General Confederation of Portuguese Workers], N.N. did exactly the opposite. He laid out his demands in the grandiose manner of a steelworker in a futuristic “socialist realism” painting, forgetting that he is a judge and the highest representative of the third [branch of government], the judiciary, and claimed a place at the table of the “first [branch]”, the executive. It is true that the power of the Council of State is as innocuous as the plume of being president of the Supreme Court, but the claim has in itself two perversities. Firstly, it is a sign that N.N. cares more about his public prominence than the problems of justice. Secondly, and much more serious, the man is volunteering himself to be the face of a group of judges [that is] against the reforming decisions of those holding political power which are currently the subject of a broad consensus between the government party and the main opposition force.

It is so pathetic as to make one laugh, were we not in Portugal and if we did not understand how the strategies of the spiders work. The man, I believe without fear of contradiction, is so intelligent and skilful as to be dangerous. But he already has an opponent: the new Attorney-General of the Republic, P.M., one of the rare people to have had the courage to stand up to him.”

There was coverage of the election in the days preceding and following it in various articles in the national press. One of those articles, published in Público on 6 August 2006, was an interview with a member (juiz conselheiro) of the Supreme Court of Justice, P.M., who had severely criticised the electoral system for the post of President of the Supreme Court of Justice. The relevant parts of the interview read as follows:

Q.: Why don’t you agree with the current system of electing the President of the Supreme Court of Justice (SCJ)?

P.M.: One of the functions of the High Council of Judiciary (HCJ) is the grading of judges who rise to the post of member of the SCJ. How do they get to the Supreme Court? Through a competition, and an assessment of their work by the members of the HCJ. Among those members there is a president of judges who, obviously ... has a certain degree of control over [those judges]. It does not cross anyone’s mind that they aren’t people whom he trusts ... and I myself am not questioning those people. What is at stake is the system.

Q.: Because it creates inequality, is that it?

P.M.: Just look at what happens. The Vice-President of the HCJ is one of the key figures in the choosing of members of the SCJ. That man should never be able to run [for elections to the SCJ] because those who are going to elect him are those whom he has graded.

Q.: Are you saying it is a distorted system [sistema viciado]?

P.M.: It is a distorted system ... It is not the people – they are all serious and honest; the problem is the system itself.

Q.: Do you support a change to the rules of [elections] to the post of President of the SCJ?

P.M.: Yes; the way these [elections] work raises doubts and questions. It is an election which has the appearance of being distorted. Whether it is, I don’t know ... But it is clear that if [a person] has a key role in the admission of A or B to an [organisation], then when [that person] has a vote he is going to vote for the person who admitted him.”

Between 2001 and 2006 several articles on the system of elections to the post of President of the Supreme Court of Justice were published in the media within the context of elections held within that period. Some of these articles called the system into question. For example, on 13 July 2004, Diário de Notícias published an article, written by L.L. and entitled “Grading of judges may involve a strategy of power” (“Graduação de juízes pode envolver estratégia de poder”), for which he had interviewed a judge who had challenged the 2004 [competition] to the Supreme Court and who had made allegations that Judge N.N. had been behind the alleged strategy. In that article, L.L. made reference to a document circulating among judges in which it was alleged that “N.N. prepared the grading of judges in order to secure a sufficient number of votes for him to be elected as President of the SCJ in the next election.”

On 7 December 2007 Judge N.N. brought an action in the Lisbon Civil Court against the applicants for defamation. He sought non-pecuniary damages amounting to 150,000 euros (EUR). The applicants contested the action against them and argued that the second applicant should not have been a party (ela era parte ilegítima) in that she had neither benefited from the article nor had had previous knowledge of it. In fact, the second applicant had not participated at all in the writing or publication of the first applicant’s article; the civil proceedings for defamation had been instituted against her on the basis of Articles 1691 and 1695 of the Portuguese Civil Code.

During the proceedings the first applicant attempted to prove, inter alia, (i) that he had based his opinion on the different articles that had been published in the media on the elections to the Supreme Court of Justice, on information obtained from a source whose identity was confidential, and on conversations he had had with different people from the judiciary (including judges who had challenged the results of the competition for posts as judge in 2004); (ii) that the article concerned an issue of public interest; and (iii) that he had written it in good faith. In this regard, several witnesses, including journalists and people from the judiciary (comunidade judiciária), were heard. The relevant statements read as follows:

(i) M.P., chairman of the Bar Association from 2007 to 2013, with whom the first applicant talked, mentioned that he had had conversations with Judge N.N.’s opponents, who had made references to the methods Judge N.N. used to obtain what he wanted;

(ii) M.J., a former President of the Bar Association, considered that the first applicant had made a political criticism and that he had not intended to attack the man personally but rather in his capacity as a politician and in terms of his way of engaging in politics and of his career, which had been based on trade unionism;

(iii) L.L. mentioned that he had contacted, regarding the article he had written, different people from the judiciary (judges who had raised suspicions regarding the competition to the Supreme Court, judges from the trade union association of judges, and prosecutors) about Judge N.N. and the system of elections to the Supreme Court; he also acknowledged that he had not talked with members of the HCJ or with Judge N.N. about the issue.

On 13 November 2009 the Lisbon Civil Court found for the plaintiff. It considered that the article in question had damaged the plaintiff’s reputation and that the expressions used by the first applicant had been disproportionate and had clearly exceeded the limits on freedom of expression. It considered that the article had diminished public confidence in Judge N.N. and in the High Council of the Judiciary, thus damaging his honour and reputation. The first applicant was ordered to pay EUR 35,000 in compensation for non-pecuniary damage. With regard to the second applicant, the Lisbon Civil Court held that under Article 1692 of the Civil Code she should not have been a party to the proceedings and that the compensation amount due arose from an action only attributable to the first applicant. The relevant parts of the judgment read as follows:

The editorial is ... the responsibility of its editors ..., appears in each edition of the publication and focuses on the most important events of the day or of that edition and aims to comment, analyse, urge – in sum, form opinion.

The editorial in question was published on 29 September 2006 – the day immediately following the plaintiff’s election as President of the Supreme Court of Justice.

The established facts demonstrate to us that the plaintiff, as a member of the Supreme Court of Justice, applied for the post of president of that court and was elected with 53 votes out of a possible 72 votes, which means that he was elected by 73.6% [of the possible votes].

This is the context of the editorial.

[The editorial examines] the plaintiff on two levels: how he, allegedly, managed to achieve the electoral results; and his electoral programme as a candidate for election to the presidency of the Supreme Court.

With regard to the first topic ... in [the editorial] there is no expression of any value judgment. It is stated as a fact – as a manner of behaviour on the part of the plaintiff: that the plaintiff helped those who elected him to rise to the post of member of the Supreme Court of Justice, given the function that he exercised throughout his life as a union leader and as both a member and Vice-President of the High Council of the Judiciary.

The essential aim was to state that throughout his life, the plaintiff had pursued a strategy [to attain power] which had built a college of electors in which he could have confidence, [pursuing that aim] via the functions he had exercised, particularly [during his time at] the HCJ.

It is true that the plaintiff was leader of the trade union association of judges, a member of the HCJ between 1989 and 1990 (and Vice-President between 2001 and 2004) and on 28 September 2006 was elected President of the Supreme Court.

The defendant did not prove the veracity of this allegation.

The defendant further argues that the opinion expressed in the editorial was based – given the lack of transparency of the whole procedure – on his knowledge of the ongoing public debate about the election of the President of the Supreme Court of Justice, of the functioning of the High Council of the Judiciary, and of the plaintiff.

In the instant case it is established that when the defendant wrote the editorial, he was familiar with the news and opinions mentioned in documents [contained in the case file] ... and had talked to people.

The facts established concern the publication of several articles on the above-mentioned topics ...

However it is not understood how or to what extent these articles allowed the applicant to reach the conclusion that: “For years, first in the trade union association of judges then [as a member of] the High Council of the Judiciary, and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of the Portuguese have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice.

In the light of the above, there is nothing which allows us to reach the conclusion that the defendant had determined the veracity of his comments [by means of accessing] credible, diverse and verifiable sources of information.

[With regard to the plaintiff’s] electoral programme as a candidate in the election of the President of the Supreme Court of Justice ... [t]he statements he made in support of that programme] have some factual basis.

In fact, it was proved that in the letter he distributed to his colleagues, the plaintiff, as a candidate for the presidency of the Supreme Court, defended the enshrinement – through a constitutional revision – of the President of the Supreme Court as a permanent member of the Council of State, as well as the improvement in a timely manner, consistent with the economic situation of the country, of the remuneration of members of the Supreme Court of Justice.

The plaintiff’s opinions may be – and in a democratic state are – subject to criticism, even more so when they are expressed within the context of his candidacy in the election of the President of the Supreme Court of Justice.

On an unknown date, both the first applicant and Judge N.N. lodged appeals against the first-instance judgment with the Lisbon Court of Appeal. The first applicant argued, inter alia, that the judgment of the Lisbon court had breached his freedom of expression and should therefore be overturned. He further contended that the compensation amount that he had been required to pay was extremely high and contested some of the facts that had been established by the court. He argued that he had obtained some information only on condition that the source providing that information would remain anonymous.

In his appeal Judge N.N. argued that the level of compensation should have been set at a higher amount and that the second applicant should have been considered a party to the proceedings.

On 9 November 2010 the Lisbon Court of Appeal upheld the first-instance judgment. It held that some of the first applicant’s comments had not exceeded the limits on freedom of expression, but that most of the content of the article had constituted an attack on Judge N.N.’s honour, honesty and reputation. The Court of Appeal emphasised that the first applicant had exceeded his right to criticise and inform. It further considered that the first applicant had not been able to prove in the proceedings the veracity of some of the allegations made in the article, even though they had been based on previous articles published in the Portuguese media about Judge N.N. and his election as President of the Supreme Court of Justice. With regard to the facts, the Lisbon Court of Appeal considered that the facts had been correctly established.

The Lisbon Court of Appeal ordered the applicants jointly to pay Judge N.N. EUR 60,000, plus interest, in compensation for non-pecuniary damage. It considered the second applicant to be a legitimate party to the proceedings and, with regard to her, it based its decision on the fact that the applicants were married under the community property system (regime de comunhão de adquiridos) and she did not have any source of income and that therefore, under the Portuguese Civil Code, the income earned by the first applicant as a journalist and editor of a newspaper directly benefited both of them.

On an unknown date in November 2010 the applicants and Judge N.N., respectively, lodged an appeal and a cross-appeal (recurso subordinado) against that judgment with the Supreme Court of Justice.

On 15 December 2011 the Supreme Court of Justice declined to examine the applicants’ appeal. It considered that the judgment of the Lisbon Court of Appeal had not clearly identified all those facts which it had considered to be proven; this made it impossible for the Supreme Court to hear the appeal. The Supreme Court ordered that the case be remitted to the Lisbon Court of Appeal in order for it to correct its statement of facts; this would enable the Supreme Court of Justice to analyse the points of law that had been raised.

On 13 November 2012 the Lisbon Court of Appeal delivered a new judgment in which it upheld its previous judgment of 9 November 2010.

As to the facts, the Lisbon Court of Appeal considered, inter alia, the following to have been established:

(i) the plaintiff had been the only candidate for the post of President of Supreme Court of Justice and had previously been a member and the Vice-President of the High Council of the Judiciary;

(ii) several articles had been published in the press and in blogs (in the periods preceding and following the election) about Judge N.N. and his electoral programme and past elections for the presidency of the Supreme Court of Justice;

(iii) on 6 August 2008 the newspaper Público had published an interview with P.M., a member of the Supreme Court of Justice, in which he had questioned the system of elections to the post of President of the Supreme Court of Justice on the grounds that it could be distorted in so far as the HCJ’s functions included the grading of judges who ascended to the post of member of the Supreme Court;

(iv) with regard to a past competition to the Supreme Court of Justice, the daily newspaper Diário de Notícias had, in 2004, published two different articles in which it had raised questions about the grading of judges by the HCJ and the possible power strategy involved; in one of the articles (for one of which a judge of a Court of Appeal who had participated in the competition had been interviewed and for which a document known to judges had been consulted) it had been mentioned that Judge N.N. had already mustered support for his election in the next elections for the post of President of Supreme Court;

(v) in 2001 Público had published an editorial [by the then editor] criticising the system of electing the President of the Supreme Court and of HCJ judges; with regard to the latter, criticism was made of Judge N.N.’s lobbying on his own account of while exercising his functions as union leader;

(vi) the first applicant’s editorial had received both positive and negative comments in the press and in blogs;

(vii) the first applicant had had knowledge of the different articles which had been published in the media before the elections and had spoken to different people about them, Judge N.N. and the functioning of the HCJ.

As to the analysis of the merits of the case, the relevant parts of the judgment read as follows:

In the present case, it is important to take into account [the fact] that the person referred to in the ... text written by the defendant is a public figure, being the fourth-highest-ranking figure of State: the President of the Supreme Court of Justice.

Despite his being a public figure, and therefore more liable to [be the target of] public criticism, his honour is still protected ...

... [I]t is important to emphasise that it appeared in the period which followed the election of the President of the Supreme Court of Justice by his peers.

... the text does not affect the plaintiff only as a public figure but also in his strictly personal sphere. In fact, starting with the latter, the expressions “which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking” and “... and added the glittering (due to the amount of accumulated tallow) hat of ‘resister’ of reforms in the judicial sector” seem to manifestly extend beyond the right to inform and to criticise, attacking the plaintiff’s personal dignity within his private sphere ...

In sum, the above-mentioned segment [of the editorial article] exceeds the proportionality inherent in the legitimate purpose of debate and critical information ...

That is not the case when the defendant attributes corporatism, conservatism and atavism to the plaintiff.

... [T]hese expressions fall within the scope of what has to be borne by a public figure ...

Let us now analyse the passages where it is said that we face a man and judge who “has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it)” and who “presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him”.

... [T]he above-mentioned passages put into question the professional ethics of the plaintiff in the exercise of his functions...

However in the instant case there was no proof given of the allegations against the plaintiff; on the contrary, ... the right to inform was exceeded.”

With regard to the amount awarded to Judge N.N. in pecuniary damages, the Lisbon Court of Appeal held as follows:

“In the instant case, the non-pecuniary damage, reflected in the violation of the right to a good name and the reputation of the plaintiff, given its severity ... had ... a negative impact in the personal sphere, including his family and professional circle, of the plaintiff.

Besides that, and this is the decisive point for the determination of the amount to be awarded, the piece written by the defendant, despite the degree of offence and suffering [caused to] the plaintiff, was not an obstacle to his re-election by a large majority (larger than that previously, as everybody knew) to the same post. As such, the severity of what the defendant wrote did not have an impact on the professional future of the plaintiff ...

In this context, it is also important to take into account the average amount ascribed to the value of life under the case-law of the Supreme Court of Justice (which is nowadays increasing): EUR 60,000.

In the light of the above, and under the applicable legal framework, it is appropriate to award the amount of EUR 60,000.”

On 21 November 2012 and 6 December 2012 Judge N.N. and the applicants respectively lodged with the Supreme Court of Justice an appeal and a cross-appeal against the judgment of the Lisbon Court of Appeal. On 25 January 2013 the applicants submitted their grounds of appeal. They complained, inter alia, that the judgment of the Lisbon Court of Appeal of 13 November 2012 was in breach of freedom of expression and that the amount which they had been ordered to pay as compensation to Judge N.N. was excessive.

On 22 February 2013 the appeals before the Supreme Court of Justice were discontinued on the ground that Judge N.N. had not submitted any grounds of appeal (julgado deserto o recurso e caducado o recurso subordinado). As a consequence, the applicants were unable to challenge the outcome of the judgment of the Lisbon Court of Appeal of 13 November 2012.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants were born in 1947, 1976, 1973, 1983 and 1987 respectively. At the time of the application they were being held in detention in Buca FType prison in İzmir.

On 23 July 2007 the İzmir Assize Court decided to restrict access to the investigation file, under Article 153 § 2 of the Code of Criminal Procedure (the “CCP”), Law no. 5271.

On 24 July 2007 the applicants were arrested and taken into custody on suspicion of being members of a criminal organisation.

On 27 July 2007 the applicants were questioned by the investigating judge, in the presence of their lawyer. According to their statements to the judge, the applicants denied being involved with the criminal organisation. They did not deny that they had had telephone conversations that had been intercepted, or that they had accepted the transfer of parcels and had possessed firearms, all of which were deemed to be evidence of making threats, of fraud and of smuggling, the offences that they were suspected of having committed.

On 1 August 2007 the applicants’ representative objected to the order for the pretrial detention in respect of the first four applicants. The representative also applied for their release pending trial on 3 February 2008, 11 February 2008 and 13 February 2008 respectively. Those applications were dismissed by the İzmir Assize Court on 4 February 2008, 11 February 2008 and 14 February 2008 respectively based the nature of the criminal charges and the state of the evidence. No hearing was held.

On 13 March 2008 the public prosecutor at the İzmir Assize Court filed an indictment, charging the first applicant with establishing a criminal organisation and the other applicants with being members of a criminal organisation. The applicants were further charged with committing fraud, making threats, and carrying out raids and smuggling, under Article 220 and other related articles of the Criminal Code.

On 17 March 2008 the trial court held an interlocutory session and, in the absence of the applicants, decided to extend their pre-trial detention. The first hearing was scheduled for 24 June 2008.

On 2 May 2008 the applicants’ representative objected to that decision in respect of the first four applicants and applied for them to be released. On 7 May 2008 the İzmir Assize Court dismissed the objection. The applicants’ representative appealed. On 9 May 2008 the appeal court dismissed the appeal without holding an oral hearing.

On 24 June 2008 İzmir Assize Court held the first hearing as planned and the applicants appeared before the court. The trial court decided to release the applicants from pre-trial detention on the same day.