CASE OF O'SULLIVAN McCARTHY MUSSEL DEVELOPMENT LTD v. IRELAND

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No 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);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant company is engaged in the cultivation of mussels in Castlemaine harbour in Co. Kerry, one of several sites in Ireland where this commercial activity is exercised. Its business involves fishing for mussel seed (i.e. immature mussels) within the harbour each year and transporting them for cultivation in another part of the harbour. It has conducted this activity at Castlemaine harbour since the late 1970s.

In Ireland, mussel seed fishing takes place during the summer period, the exact dates being determined each year by statutory instrument. This activity is subject to obtaining the relevant leases, licences, authorisations and permits (see under “Relevant domestic law” below). The competent authority in this respect is the Minister for Agriculture, Food and the Marine (hereinafter “the Minister”, and “the Department” for the corresponding Government Department). In order to engage in this activity, operators must be in possession of an aquaculture licence, which has a validity of ten years. A sea-fishing boat licence is required, and the boat used must be entered in the Register of Fishing Boats. Operators must also hold an authorisation to fish for mussel seed, issued annually by the Minister (see under “Relevant domestic law” below).

Subsequent to the facts giving rise to this application, an additional requirement was introduced pursuant to EU law. Where mussel fishing is carried out in an environmentally protected area, a “Natura permit” must also be obtained (see paragraph 20 below).

According to the Government, a total of 41 authorisations were issued in 2008 to Irish sea-fishing boats to fish for mussel seed, four of which operated in Castlemaine harbour on behalf of six mussel aquaculture operators.

In 1993, the competent authorities published a notice in the national press announcing the intention to classify twelve sites, including Castlemaine harbour, as a special protection area (SPA) within the meaning of the domestic legislation transposing Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (“the Birds Directive”, OJ 1979 L 103, p. 1). The notice indicated that it was not envisaged that this would change the usage of the sites concerned. The harbour’s SPA classification took effect in 1994. The applicant company continued its activities each year, obtaining the necessary licences and permits.

In 2000, the domestic authorities designated Castlemaine harbour a special area of conservation (SAC) within the meaning of the domestic legislation transposing Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”, OJ 1992 L 206, p. 7). As it was now subject to the two EU directives, it had the status of a “Natura 2000” site.

Dating back to the late 1990s, the European Commission was of the view that Ireland and several other then EC Member States were not fulfilling their obligations under EC environmental law, and specifically in relation to the two directives referred to above (references hereafter will generally be to EU and not EC law). Between 11 November 1998 and 18 April 2002, it addressed to the Irish authorities four letters of formal notice warning that Ireland had failed to correctly transpose and apply those two directives. Following three reasoned opinions issued in October 2001 and July 2003, the Commission brought infringement proceedings against Ireland in September 2004, pursuant to Article 226 EC (now Article 258 TFEU). It sought a declaration that Ireland had failed to fulfil its obligations under several provisions of the directives, namely Articles 4(1), (2) and (4), and 10 of the Birds Directive, and Article 6(2) to (4) of the Habitats Directive. One specific aspect of these proceedings concerned the authorisation of aquaculture in protected areas without the requisite prior assessment of the environmental impact of such activities.

On 13 December 2007 the Court of Justice of the European Union (hereinafter “the CJEU”) delivered its judgment in Commission v. Ireland (C418/04, EU:C:2007:780), declaring that Ireland had failed to fulfil its obligations under the aforementioned directives in a number of respects. It held, insofar as relevant to the present case:

“236. ... [R]egarding the aquaculture programmes, the Commission relies, essentially, on the Review of the Aquaculture Licensing System in Ireland carried out in 2000 by BirdWatch Ireland as the basis for its view that Ireland has systematically failed to carry out a proper assessment of those projects situated in SPAs or likely to have effects on SPAs, contrary to Article 6(3) and (4) of the Habitats Directive. In that context, it emphasises the importance of a prior assessment for the purpose of weighing the implications of a project with the conservation objectives fixed for the SPA concerned.

The Court notes that that study covered 271 authorisations for aquaculture programmes issued by the Department of Communications, Marine and Natural Resources during the period from June 1998 to December 1999 and 46 applications yet to be decided on. Moreover, 72 licences and nine pending applications concerned aquaculture programmes situated inside or near an SPA. The authorisations issued concern, in 84% of the activities authorised in SPAs, oyster and clam farms.

It should also be borne in mind that, under the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site is to be made subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects (Case C127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I7405, paragraph 45).

The study carried out by BirdWatch Ireland refers to a number of potential negative effects of shellfish farming, including the loss of feeding areas and disturbances caused by increased human activity and states that, even when an aquaculture programme is inside an SPA, very little protection is provided for bird habitats. Ireland, for its part, does not allege that no aquaculture programmes have any effects on SPAs.

It follows that the authorisation procedure ought to have included an appropriate assessment of the implications of each specific project. It is clear that Ireland merely stated, without offering further explanation, that the Irish scheme for authorising mollusc farms, including the provisions on consultation, does in fact provide for detailed consideration of all aspects of an aquaculture development project before a decision is taken on authorisation.

Accordingly, the Court finds that Ireland fails to ensure systematically that aquaculture programmes likely to have a significant effect on SPAs, either individually or in combination with other projects, are made subject to an appropriate prior assessment.

This finding is supported by the fact that Ireland has not put forward any specific scientific studies showing that a prior, detailed ornithological study was carried out, in order to challenge the failure to fulfil obligations alleged by the Commission.

Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 61).”

At or around the same time, the CJEU found that the Netherlands, France, Finland, Italy, Spain, Greece and Portugal had similarly violated their EU obligations.

In view of the judgment, the Minister considered that it was not legally possible to permit commercial activity in the sites concerned until the necessary assessments had been completed. Accordingly, when granting authorisation for mussel seed fishing for the period 9 June to 1 July 2008, he prohibited it in 24 locations around the Irish coast, including Castlemaine harbour (Statutory Instrument No. 176 of 2008, adopted on 6 June 2008). The applicant company was informed of the situation by an official of the Department on 6 June 2008. It wrote to the Taoiseach (Prime Minister) that same day to underline the threat to the livelihood of those affected. It recalled the terms of the notice published in 1993 (see paragraph 9 above), and explained that it had just purchased a new boat at a cost of 1 million euros. The applicant company received a reply from the Department dated 2 July 2008. This explained that baseline data for the area had to be gathered in order to perform the assessment required by the Habitats Directive, as interpreted by the CJEU. It indicated that Castlemaine harbour had been given priority for the exercise and that work had already begun to collect the necessary data. It added that the authorities would be seeking the agreement of the European Commission to allow aquaculture to resume on an interim basis.

The following month the applicant company was issued an authorisation to fish for mussel seed in the harbour, with a starting date of 23 August 2008. The authorisation was subject to a number of conditions, including that it did not allow the holder to fish for mussel seed in an area or areas where this activity had been prohibited. On that same date, the temporary prohibition on mussel seed fishing at Castlemaine harbour, and at 21 other locations around the State, was maintained in force by Statutory Instrument No. 347 of 2008. The temporary prohibition only applied to mussel seed fishing; it did not prevent the harvesting of mussels previously fished and laid on farms for cultivation.

The applicant company wrote to the Department on 28 August 2008, warning that the supply of mussel seed in the harbour was being consumed by predators and that it would hold the Department responsible for all losses incurred. It requested a satisfactory resolution within ten days, failing which it would take advice about legal action.

On 3 October 2008, following successful negotiations between the Department and the Commission (see further below), the Minister issued Statutory Instrument No. 395 of 2008 removing Castlemaine harbour from the list of locations where mussel seed fishing was prohibited. The applicant company was therefore able to commence mussel seed fishing on the date the instrument came into operation, namely 5 October 2008. By that stage, however, natural predators had decimated the mussel seed. Since mussels need two years to grow to maturity, the financial consequences of the temporary prohibition on mussel seed fishing in Castlemaine harbour in 2008 were only felt in 2010. That year, the applicant had no mussels for sale, representing a loss of profit that it estimated at 289,599 euros.

According to the applicant company, there was no viable replacement for local mussel seed. Previous attempts to bring in mussel seed from other sites had not proved successful due to the high mortality of the seed and to the transport costs involved. It argued that it was therefore wholly dependent on the use of local resources. The applicant company further explained that if there had been any forewarning of the restriction on mussel seed fishing in 2008, it would not have made such a major investment in a new boat purchased in May of that year.

In 2009, the harbour was opened for mussel seed fishing from 30 April to 14 May, and from 15 September to 23 December. The applicant company was able to gather the usual amount of mussel seed.

In August 2009, in accordance with EU law, the Minister introduced an additional requirement for fishing in SACs or SPAs, a fisheries Natura permit.

In 2010, the periods authorised for mussel seed fishing in the harbour were from 29 April to 25 May, and from 30 August to 2 December. The applicant company was not able to operate during the first period, as it had not yet obtained such a fisheries Natura permit. When it eventually recommenced fishing at the end of August, the mussel seed had once again been depleted by predators, although the applicant company acquired some tonnage. It estimated its loss of profits for that year at 119,941 euros.

The Government provided the following explanations of the action taken following the CJEU judgment, which the applicant company did not dispute. They indicated that even before the delivery of the CJEU’s judgment they had commenced a process to determine how fisheries should be assessed in compliance with the relevant EU directives. Following that judgment, the Department immediately began the process of ensuring compliance with EU law in the fisheries sector. This process involved the domestic bodies with responsibilities for fisheries (Bord Iascaigh Mhara – BIM), marine research (Marine Institute) and nature conservation (National Parks and Wildlife Service – NPWS). Within one month of the judgment being handed down, BIM prepared a paper in January 2008 on the distribution of bi-valve (dredge) fisheries with the potential to lead to disturbance or significant disturbance of habitat, including the fishing of mussels.

At a meeting in February 2008 between the NPWS and the EU Commission, the latter underlined the need to comply with the judgment by conducting the requisite assessments for aquaculture, and in so doing addressing the cumulative effects of other activities that could adversely affect Natura 2000 sites. While the Commission recognised the need for some flexibility, and the small scale of much of Irish aquaculture, it considered that the onus was on Ireland to initiate a robust, proportionate and scientific process.

In April 2008, the relevant domestic bodies agreed on the need for an alternative approach to assess inshore fisheries on an interim basis, pending the collection of baseline data allowing the appropriate assessment required by EU law. To this end, a series of steps was proposed. The following month, BIM prepared a working document on fisheries in Natura 2000 sites, which included a case study of Castlemaine harbour. The study considered that the consequences of mussel seed fishing on the site were negligible. According to the applicant company, this assessment was consistent with that set out in a draft consultation document which had previously been prepared in 2000 by the Government Department with responsibility for heritage, of which the NPWS was then part.

On 30 July 2008 Ireland sent to the Commission its official response to the CJEU judgment. It acknowledged that assessments were required in relation to fisheries, and that the necessary baseline data had to be collected at the sites in question. The response also indicated that the Irish authorities would seek the Commission’s approval for an interim approach.

In early September 2008, the Marine Institute submitted to the Department a finalised study entitled “Fisheries in Natura 2000”. The Department was hopeful that the Commission would tolerate an interim approach to the activities in Castlemaine harbour, where the situation was time critical. The same month, the NPWS warned that in the absence of sufficient funding and staff it could not provide the necessary assurances to the Commission. It informed the Department that the assessments available to date were not adequate, and that the Commission shared this view. Additional studies were needed. The Commission’s stance was that it was prepared to give its temporary agreement to fishing at Castlemaine harbour if the additional studies were submitted and if Ireland gave an undertaking to meet the terms of the judgment over a three-year period.

On 2 October 2008 the NPWS sent to the Commission an interim assessment of mussel seed fishing in Castlemaine harbour, indicating that on the basis of its assessment this activity was not likely to have a significant impact on the site. The Commission agreed that, on the basis of this interim assessment, fishing could be allowed in the harbour for 2008 only, on condition that Ireland submit more detailed assessment procedures with a view to allowing fishing there in future. The Commission sought confirmation that there was an adequate basis in domestic law to ensure fishing activities remained in compliance with the directives. It requested amendments to certain aspects of the assessment, and it also requested a monitoring report. From that point it was considered legally possible to open Castlemaine harbour. The Minister signed the Statutory Instrument (No. 395 of 2009) the next day, 3 October 2008, allowing mussel seed fishing to recommence on 5 October 2008 (see paragraph 17 above).

In late 2008 and early 2009 the Commission maintained its robust stance, requiring a long-term plan to achieve compliance in order for the interim approach to continue. The NPWS indicated the likelihood of a negative assessment due to a decline in several bird populations, and pointed to the need for additional surveys of the site.

In January 2009 the Irish authorities assured the Commission of its commitment to a verifiable three-year plan to achieve compliance with the directives as regards fisheries and aquaculture. They indicated an allocation of 2 million euros over the period 2009-2010 for a wide-ranging exercise to collect baseline data. In March 2009, Ireland submitted its “roadmap to compliance” with the judgment to the Commission. The latter approved an interim approach to assessment, based on best available data and the collection of limited additional data in the time available, and subject to stringent management and control arrangements.

There was further engagement between the Irish authorities and the Commission during 2009 and 2010 regarding compliance with the CJEU judgment and the relevant directives. Public consultation was also required in relation to the regulatory changes that had to be made.

The appropriate assessment of Castlemaine harbour was completed in April 2011 by the Marine Institute. Running to over 130 pages, it assessed the effects on the site of the different types of aquaculture carried out there and concluded that there was no reason to anticipate any environmental disturbance from mussel fishing. This was one of multiple assessments which the respondent State had to undertake in light of the CJEU judgment.

Along with another local company, which was not directly involved in the cultivation of mussels but was a downstream retailer and exporter, the applicant company instituted proceedings in the High Court in February 2009 against the State. It relied on a series of grounds, notably breach of legitimate expectation, operational negligence and breach of the constitutional right to earn a livelihood.

In view of the State’s delay in delivering a defence to the claim, the applicant company brought a motion for judgment in default of defence, which was heard and concluded on 13 July 2009. The State delivered its defence on 6 August 2009.

In October 2009 the applicant company sought discovery of documents on a voluntary basis. It then applied to the Master of the High Court, on 14 December 2009, for an order of discovery, pursuing the matter before him in April, May and July 2010. The Master gave his ruling on 7 July 2010, which the applicant company appealed against to the High Court. It was granted an order of discovery on 18 October 2010, directing the State to provide a variety of documents within eight weeks. The State swore an affidavit of discovery on 7 January 2011. It swore a supplemental affidavit of discovery the following year, on 17 October 2012.

The applicant company issued an amended statement of claim on 19 August 2011, which referred to the restrictions applied in 2009 and 2010 as well.

On 1 September 2011 the applicant company set the action down for trial and certified it ready for hearing. Over the following months there were some exchanges of correspondence between the applicant company’s solicitor and the Chief State Solicitor in relation to the hearing of the action. On 9 May 2012 the applicant company requested a hearing date.

The hearing took place over eight days in November 2012. Judgment was given on 31 May 2013.

The High Court ruled in favour of the plaintiffs. The trial judge accepted their evidence that it would not have been viable for the applicant company to purchase mussel seed from operators based in other locations. He first found that there had been a breach of legitimate expectation, stating:

“[T]here was a representation made to the plaintiffs in both the government notice and the newspaper notice of 1993. There was comfort given. What happened from then onwards, the annual allocation of seed collection authorisations and the constant refurbishing of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort given to them that there would not be a summary closure of their business without some good scientific reasons or without some consultation process before doing so.”

The High Court also found that there had been “operational negligence” due to the failure of the authorities to carry out the necessary scientific tests or monitoring that would have provided the data required by EU law. It considered that the failure to undertake these steps was a mistake of law by the Minister, which led to the denial of the applicant company’s access to the harbour for a period in 2008, causing financial loss. The trial judge accepted the evidence presented by the applicant company that it would have been possible to conduct the requisite analysis within two months. Had that been done, there would not have been any disruption of the applicant company’s activities.

The applicant company claimed compensation for lost profits caused by the restrictions in 2008 and 2010, which it estimated at 289,599 euros and 119,941 euros respectively, making a total claim of 409,450 euros. The State challenged both the basis for the applicant company’s calculations and the quantum of damages sought. The High Court decided that the applicant company’s claim should be reduced by roughly one third. This resulted in an award of 275,000 euros for its losses over the two years in question. It awarded the other local company 125,000 euros.

The State appealed both on the issues of liability and the quantum of damages awarded. It filed its notice of appeal with the Supreme Court on 16 July 2013. The applicant company brought a cross appeal in relation to the estimation of damages. A stay issue was ultimately resolved by the Supreme Court on 4 October 2013. On 21 July 2014 the State certified that the appeal was ready for hearing. The appeal was granted priority by the Chief Justice on 31 July 2014. The hearing took place on 29-30 April 2015, and judgment was given on 22 February 2016.

The Supreme Court was unanimous in overturning the High Court’s ruling on legitimate expectation. Addressing this issue, Clarke J, with whom the other members of the court agreed, stated:

“10.7 ... [T]he only representation which it can be said was expressly made by the Minister ... was to the effect that “it is not envisaged” that there would be any restriction on traditional activities. That statement was made in April 1993, and was in the context both of developing European environmental legislation and also in the context of the process leading to the identification of areas within Ireland which would be designated for the purposes of that European legislation. It could not be said to amount to a clear commitment on the part of the Minister that there could never be any adverse consequences. What the consequences were going to be of the designation of an area for European environmental purposes was a matter of European law.

10.8 As events unfolded, it became clear that the Minister did not have the legal authority, as a matter of European law, to allow for the uninterrupted continuance of traditional activities in protected areas unless and until an appropriate assessment had been carried out. ... The Minister could give no greater assurance than that, in the then view of the Minister, it was not envisaged that there would be problems for traditional activities.

10.10 Next, reliance is placed on the fact that, as found by the trial judge, the ongoing activities of [the applicant company] were carried out to the knowledge of the Minister and on the basis of annual legal measures put in place by the Minister which facilitated the so-called opening of the harbour. However ... the fact that there may have been an error in the past cannot create a legitimate expectation that that error will be continued into the future. The fact that the Minister was mistaken in his view that traditional activities, of which the Minister undoubtedly knew, could continue provided that the Minister put in place the appropriate legal measures, and was also in error about the fact that those legal measures could be put in place in conformity with European law without carrying out an appropriate assessment, cannot create a legitimate expectation to the effect that that situation would continue.

10.11 While there undoubtedly was significant expenditure, and while the incurrence of expenditure on foot of a representation may form part of the Court’s assessment in determining whether it would be appropriate to allow a public authority to resile from a representation made, expenditure will not be relevant if there was no legitimate expectation in the first place.

10.12 ... As interpreted by the [CJEU], a permission for activity in a protected area can only be given when there is an appropriate assessment. An appropriate assessment requires that, on a scientific assessment, risk be excluded. The Minister was required, therefore, as a matter of European law, to be concerned not with unproven risk but rather with proven absence of risk.”

On the issue of operational negligence, three of the five judges upheld the State’s appeal. Two members of the majority gave judgment.

MacMenamin J observed that strong policy considerations arose in the case. The question of how to afford redress to individuals who had suffered the detrimental effects of wrongful actions by the executive was a legitimate concern. Yet changes in the law of negligence and reformulations of State liability must be carefully and incrementally approached with a clear view as to their long-term consequences. While there undoubtedly was a strong public interest in ensuring a proper balance between private and public rights and duties, there was a stronger public interest in ensuring that government can actually function, and that administrators were not impeded in making decisions through fear of a morass of litigation. The courts should not become a form of surrogate unelected government, second guessing prima facie lawful government actions in areas of discretion that did not raise questions of exceeding statutory powers. Reviewing the established domestic jurisprudence, he concluded that operational negligence had not been accepted in Irish law. He considered that in the present case the High Court had identified a tort with such broad headings lasting over so many years that it was questionable whether there was a justiciable controversy at all. It was impossible to say whether it was a tort committed by act or by omission. It was unclear at what point in time the Minister had acted wrongfully in relation to the plaintiffs. It might be said that, by allowing aquaculture to continue prior to 2008, the Minister had actually had regard to the applicant company’s interests, even at the cost of failed adherence to EU law. He further observed:

“36. There then arises a further unavoidable question, that is, whether, if the Minister had, in fact, acted between 2000 and 2008, the respondents would inevitably have incurred significant losses, by a similar necessary suspension of activity in Castlemaine Harbour, as occurred from 2008 onwards, in order to obtain appropriate baseline data? If the detailed surveys complained of were necessary to establish the baseline, one is only left to speculate as to how these surveys could have been carried out without exactly the same or similar cessation of activity in the harbour, albeit in earlier years.”

45Francovich breach of EU law (C-6/90 and C9/90, EU:C:1991:428) but rather from the damage allegedly caused by the implementation of EU law after a breach thereof was identified by the CJEU. The fallacy in the case was to seek to isolate some private duty owed to the plaintiffs by the Minister from his overarching public duty to comply with and implement EU environmental law.

Charleton J, concurring, noted that under Article 6 of the Habitats Directive, the Minister had no discretion at all. He underlined three salient facts. First, many of the approximately 140 sites designated under the Habitats and Birds Directives were places of commercial activity of some sort. Following the ruling of the CJEU, emergency measures had to be taken to allow economic operators some latitude for the continuation of even limited business activity within the sites. This was done essentially by Irish public servants negotiating with the Commission. There were about forty sea-based sites, including Castlemaine harbour. Second, the State had not given a firm undertaking that the new environmental classification of Castlemaine harbour would not affect the applicant company’s activities. Third, the closing and opening of the harbour was done by valid statutory instruments. He considered that this ruled out any question of liability in negligence.

He then referred to the primary legislation governing fishing, the main objective of which was the conservation and rational management of the national fish reserves. This point was central to where any duty of care might lie. The starting point in the tort analysis had to be whether the Minister had owed a duty of care to the applicant company. There was a need for caution in holding that the public authorities owed a duty of care in particular circumstances, since it could greatly hinder their normal functioning. There were other means to deal with improper conduct by a public body, such as judicial review and the tort of misfeasance in public office. He reiterated that the authorities had not had any choice; the Minister had acted as prescribed by EU law. At most, it might be said that there was some choice to be made about whether to give priority to some of the affected sites over the others. Yet it was hard to argue that Castlemaine harbour was more deserving than the other locations. Concentrating resources on some sites would have left operators in other sites waiting longer. The State had instead adopted a strategy of vigorous negotiation with the Commission to attempt to salvage whatever could be recovered for the benefit of users of all of the sites concerned.

The concept of operational negligence had not yet been accepted as part of domestic law. It would mean a lack of certainty in the law, and make public decision-making subsidiary to the views of experts at several removes from the pressures of government. It would mean arrogating broader functions to the courts than provided for in the Constitution. The Minister had exercised powers based on statute and each decision had been correctly expressed through a statutory instrument. Given the general conservationist aims of the primary legislation, there was no statutory duty in favour of the applicant company. There was no discretion vested in the Minister to exempt any economic actor from EU rules. There was no duty of care towards the applicant company that could found an action in negligence. Instead, the duty of care was towards the wider community, expressed as the protection of the environment.

Writing for the minority, Clarke J considered that the High Court judgment, insofar as it concerned negligence, should be upheld as regards the events of 2008. Concerning the events of 2010, he noted that the applicant company had not provided evidence allowing a causal link to be established between the alleged failure on the part of the Minister and its inability to conduct its business that year. It therefore had no cause of action against the State in this respect.

Applying the relevant principles to the case, Clarke J clarified that there could not have been a duty on the Minister in 2008 to refrain from closing the harbour until an appropriate assessment had been carried out, as this would have been contrary to EU law. To the extent the harbour could be opened, this was only permissible in accordance with the interim measures agreed with the Commission. The real question was therefore:

“15.4 ... In the light of developments in European law, did the Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found to be present, to allow those activities to be authorised?”

He considered that on the facts of the case the necessary elements of foreseeability and proximity were present. The Minister was well aware of the activities taking place in Castlemaine harbour. He was also aware, in light of the statement published in 1993, that there was a potential issue that might arise in relation to such activities. Therefore, the Minister had been fully aware that any failure to place himself in a position to make a sustainable decision about the continuance of traditional activities in the sites concerned could have a significant effect on those involved in them. A private party in an analogous position would undoubtedly have been held to have a duty of care towards such persons. He further noted that it must have been clear to the Minister for some time prior to the CJEU judgment that there was a risk that the position taken by the Commission would be upheld over that of the State. In that eventuality, there would be an immediate problem due to the absence of the necessary scientific data for the appropriate assessment to be made, leading to at least the temporary interruption of the activities of the applicant company and others operating in protected areas. These formed a small and defined group of persons that, to a large extent, were actually known to the Minister and the Department.

As to the presence of any countervailing policy factor, he reiterated that the case did not concern matters of policy, discretion or adjudication. It did not touch upon the allocation of resources or the making of statutory decisions. It was about the purported duty of the Minister to take reasonable steps to ensure that he would be in a proper position to make a decision under European law and any relevant Irish measures. He clarified that he did not necessarily disagree with the view of MacMenamin J that no specific duty of care on the Minister had arisen in the period after the CJEU judgment. At that stage, the authorities had found themselves on the back foot, with many decisions to be made about the allocation of the resources needed to conduct appropriate assessments at the sites concerned. But the actions and decisions in 2008 and later were not relevant to the duty of care as he had defined it:

“15.31 ... [T]he Minister got it wrong by failing to put in place measures to secure the appropriate scientific data to enable an appropriate assessment to be carried out long after it had become clear, by reason of the position adopted by the Commission, that there was, to put it at its mildest, a significant doubt as to whether the Minister’s position was correct.

15.33 ... [I]t seems to me that the duty of care which I suggest should be held to lie on the Minister does not derive from any balancing exercise at all and does not involve any aspect of the undoubted over-arching public duty which the Minister was obliged to perform. Against what can it be said that the Minister was balancing when he decided not to assemble the necessary scientific information and data (despite the Commission’s reasoned opinion) prior to the decision of the ECJ? What over-arching public duty would have been in any way impaired by the collection of such data? There is no evidence to suggest that the failure to assemble the necessary data was based on any decision involving policy, discretion or adjudication.”

Finally, he did not agree with the majority that the applicant company’s business would have been interrupted in any event if the Habitats Directive had been correctly implemented at an earlier point in time. According to Clarke J, the evidence accepted by the High Court was that the necessary data could have been collected and analysed in a relatively short period of time, avoiding any interruption of the applicant company’s usual activities. There was thus a causal link between the failure to assemble the relevant data and conduct the assessment at an earlier point in time, and the interruption of the applicant company’s activities in 2008.

In relation to damages, Clarke J noted that there were many points of disagreement between the applicant company and the State over the manner in which the former’s losses should be properly assessed. He considered that the difficulties with the evidence and the figures would have made it impossible for the Supreme Court to conduct a fair and just calculation. Had the State’s appeal been rejected, the proper course would have been to remit the question of damages to the High Court for reassessment.


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1966 and lives in Gdańsk.

At the relevant time, the applicant was a member of the Polish Parliament and a member of the Law and Justice party.

On 8 May 2006 the applicant and several other politicians, experts and journalists, participated in a live television programme, Warto rozmawiać (“It’s good to talk”), shown on TVP2. The programme was also broadcast on TVP Polonia on two consecutive days.

During the programme the applicant took out a copy of Gazeta Wyborcza, a Polish daily newspaper and, pointing to particular pages, said:

“I would like to show you the nature of the relationship between this media agreement (“uklad”) ... and the attacks on Law and Justice. I will show you Gazeta Wyborcza, which for the first seven pages, for example today, is a frenzied attack on Law and Justice. Out of modesty I will not mention that a horrible piece about me, full of lies, is on the first page. On the second page, a frenzied attack on Kaczyński and the Polish Families League. Here, “Students fear flogging”, etc. etc., “Radio Maryja miracles”. This is just obsessive propaganda. But let’s go further, to page thirty-five. And what do we see? We see an advertisement entitled “We have built one of the world’s biggest stock markets with the participation of Polish shareholders. We are proud of that.” This is an advertisement for the company J&S S.A....

So the paradox is that usually in newspapers they advertise washing powders, cosmetics, beers, or cars, that is, widely available consumer goods (powszechnego nabycia). This [company] is a monopolist. It does not need any advertising. This company imports most of the crude oil into Poland and drives billions of euros away from Poland to another company, which is registered somewhere in Cyprus. This is not about an advertisement. This is [about] financing mass propaganda against Law and Justice through an agreement which has been threatened by Law and Justice, so that such dubious deals (geszefty) ...

The point is that Law and Justice has interfered with extremely serious connections, which have been draining ...

Just one sentence ... but the jokes are over, and this structure (układ) understood that there will be no early elections, there will be no minority government, this is a chance for an institutional construction ...”

During the applicant’s statement one of the journalists interrupted him by saying: “But this would be more appropriate if someone from Gazeta Wyborcza was here.” However, the applicant continued with his statement.

On 16 May 2006, Agora S.A., the publisher of Gazeta Wyborcza, brought a civil claim against the applicant for the protection of its rights. It claimed that the applicant’s statements during the television programme on 8 May 2006 had harmed its good name and credibility and asked that the applicant be made to have an apology published in Gazeta Wyborcza and broadcast on TVP2 and to pay 25,000 Polish zlotys (PLN) to a charity.

On 12 June 2007 the Warsaw Regional Court granted the claim and ordered the applicant to issue an apology via Gazeta Wyborcza and TVP2 for the statements he had made. It further ordered the applicant to pay PLN 10,000 (approximately 2,500 euros (EUR) to a charity and PLN 2,410 (approximately EUR 600) in court fees.

The text of the apology to be published by the applicant was as follows:

“I declare that the public statement I made during the programme Warto rozmawiać, broadcast on 8 May 2006 on TVP2, included untrue, defamatory allegations and suspicions about AGORA S.A., a company registered in Warsaw, and about its publishing activity regarding Gazeta Wyborcza. I confirm that those allegations caused negative consequences for AGORA S.A in conducting their business activities, in particular a loss of indispensable credibility and trust.

Consequently, I apologise to the Warsaw-registered company AGORA S.A. (the publisher of Gazeta Wyborcza) for having publicly disseminated untrue, defamatory statements which could have harmed its good name, credibility and reputation.

The above statement is made as a consequence of losing a civil case. ”

During the proceedings the applicant submitted that it had not been his intention to offend the plaintiff. In the television programme he had merely expressed a value judgment relating to aggressive and clearly one-sided articles published in Gazeta Wyborcza. He further noted that as his statements had been value judgments he had not had to prove their veracity.

The court considered that the applicant had breached the plaintiff’s rights, in particular in respect of its good name, credibility and reputation. It could be seen from the applicant’s statement that he had wished to point out to the audience that the plaintiff and Gazeta Wyborcza had had some kind of media/business agreement, whereby articles against Law and Justice had been published in Gazeta Wyborcza and financed via advertisements.

The court observed that the applicant’s statement had contained both facts and conclusions drawn from those facts.

The court further observed that an accusation that a newspaper had published articles ordered by a sponsor was clearly offensive to the publisher. Likewise, it was offensive to the publisher to be associated with a company that allegedly conducted morally doubtful activities. The defendant had not submitted any evidence in support of his allegations. He had failed to explain on what basis he had drawn the conclusion that the income obtained from a particular advertisement had resulted in articles being published in Gazeta Wyborcza. Furthermore, there had been no reason to believe that the income obtained from the J&S S.A. advertisement had been connected with any particular articles in Gazeta Wyborcza, particularly the ones that the applicant had referred to as “a frenzied attack on Law and Justice”.

The court stressed that J&S S.A. had at the relevant time placed advertisements in several newspapers and magazines. However, the applicant had not alleged that those other newspapers or magazines had been involved in the alleged agreement (układ). The court pointed out that a publisher could not refuse to publish an advertisement unless one of the grounds set out in the press law existed, which had not been the situation in the present case. Moreover, as a rule, a publisher was not responsible for the content of advertisements.

The court did not agree with the applicant that he had not wished to infringe the plaintiff’s rights. It noted that the applicant had prepared in advance to make the statement in question. He had already had a copy of Gazeta Wyborcza when he had entered the television studio and he had had it in his hand while making the statement. In the court’s opinion, the declaration had not been made spontaneously.

Lastly, the court observed that the applicant’s statement could not have been explained on the grounds that it had been in the public interest. On the contrary, it was in the public interest that public figures such as the applicant, a member of parliament, should base the opinions they expressed in the media on verified facts and did not breach the rights of others.

The applicant lodged an appeal against the judgment. He argued, amongst other things, that the Regional Court had wrongly classified his statements as facts and not as value judgments.

On 25 June 2008 the Warsaw Court of Appeal upheld the firstinstance judgment and ordered the applicant to pay 270 PLN (about EUR 67) in court fees for the proceedings at second instance.

The Court of Appeal considered that the first-instance judgment had not related to the part of the applicant’s statement concerning articles about himself and Law and Justice, even though he had called them “frenzied attacks”, because it was well known that Gazeta Wyborcza was critical of Law and Justice and that was not something which needed to be proved. However, the applicant’s allegations that J&S S.A. had conducted unclear or even suspicious dealings under the cover of placing advertisements in Gazeta Wyborcza, and had in fact financed them only to destroy Law and Justice, which, for its part, had been fighting against the “agreement” between the company in question and Gazeta Wyborcza, had been statements of fact. Nevertheless, the applicant had not proved the truthfulness of his statements about the connections between the plaintiff and the J&S S.A. company.

The court agreed with the Regional Court that the applicant had prepared in advance to make the statement in question. The programme had concerned different issues and the statement had not been a response or reaction to the discussion between the participants. During the programme the applicant had kept a copy of Gazeta Wyborcza under his chair, which he had shown to the cameras at the relevant moment.

As regards the PLN 10,000 (about EUR 2,500) to be paid to a charity, the court considered that to be a modest sum and the costs of publishing an apology a normal consequence of the applicant’s wrongdoing.

The applicant lodged a cassation appeal against the judgment. He argued that the Court of Appeal had wrongly applied the standards of Article 10 of the Convention and had thus considered his statement to be one of fact rather than a value judgment. In his opinion, he had expressed value judgments during a public debate and had therefore not undermined the plaintiff’s good name.

The applicant’s cassation appeal was dismissed by the Supreme Court on 5 November 2009.

The court considered that the statement in question, in so far as it had concerned relations between J&S S.A. and Gazeta Wyborcza, had been a statement of fact. The applicant had spoken of suspicious links between Gazeta Wyborcza and the publisher of the advertisement and the creation of fictional reasons for receiving funds from that publisher, which was all aimed at allowing Gazeta Wyborcza to oppose Law and Justice. Such a statement, according to the court, had gone further than being a simple opinion about an advertisement in the press. Adding more information had put J&S S.A.’s advertisement in a completely different, negative light. Asking the applicant to prove such a statement had not been excessive and had not interfered with the freedom of political debate, but had been necessary for the accuracy and pertinence of such a debate.

The court further referred to Article 10 of the Convention and stressed that freedom of expression was not absolute. Noting the case of Feldek v. Slovakia (no. 29032/95, ECHR 2001VIII), it further reiterated that where a statement amounted to a value judgment, the proportionality of the interference may depend on whether there existed a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive. In the present case, the defendant had not even attempted to prove the accuracy of his statements about the alleged connections of which he had accused the plaintiff.

On 29 August 2008 Agora S.A. instituted enforcement proceedings in order to summon the applicant to comply with the obligations imposed by the Warsaw Regional Court’s judgment of 12 June 2007.

On 12 January 2010 the Warsaw District Court ordered the applicant to publish the apology in question in Gazeta Wyborcza (in a smaller size than originally indicated). Since the applicant failed to comply with that order, on 26 February 2010 the Warsaw District Court allowed Agora S.A. to publish the apology in Gazeta Wyborcza in the applicant’s name and ordered him to cover the costs of publication of PLN 34,897.36 (about EUR 8,700).


CASE OF URECHEAN AND PAVLICENCO v. THE REPUBLIC OF MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

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

The applicants were born in 1950 and 1953 respectively and live in Chişinău.

Both applicants were politicians at the time of the events. The first applicant was mayor of Chișinău and the leader of an opposition political party. The second applicant was a Member of Parliament (“MP”) and member of an opposition party.

On 30 November 2004 and 3 March 2007 the then president of the Republic of Moldova Mr V. Voronin (hereinafter “the President”) participated in two television programmes on two privately owned channels, one of which had national coverage. He was interviewed by journalists on various topics such as the economy, justice, foreign relations and elections. The President stated, among other things, that “during the ten years of activity as a Mayor of Chisinau, Mr Urecheanu did nothing but to create a very powerful mafia-style system of corruption”. When referring to the second applicant and to other persons, the President stated that all of them “came straight from the KGB”.

Both applicants brought libel actions against the President, seeking a retraction of the impugned statements and compensation. The first applicant sought compensation of 0.1 Moldovan lei (MDL), while the second applicant claimed MDL 500,000 plus payment of her court fees and legal costs. The President’s representative opposed the actions arguing that the impugned statements had been covered by his immunity.

On 11 January 2005 the Buiucani District Court discontinued the proceedings in the case lodged by the first applicant on the grounds that the President enjoyed immunity and could not be held responsible for opinions expressed in the exercise of his mandate. The court gave the following reasoning in its decision:

“Having examined the materials of the case and heard the parties, in the light of Article 265 of the Code of Civil Procedure, the court considers it necessary to strike out the case.

It its judgment Nr. 8 of 16 February 1999 on the interpretation of Article 71 of the Constitution, the Constitutional Court held that legal responsibility encompasses responsibility under criminal, civil and administrative laws.

In the same judgment, the Constitutional Court gave an extensive explanation to the expression “opinions expressed in the exercise of his mandate” used in Article 71 of the Constitution, holding that it means the point of view, opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life.

In such circumstances of fact and law, the court considers it necessary to strike out the case against the President of the Republic of Moldova, V. Voronin, on the ground that he cannot be held liable under civil law.”

On 25 April 2007 the Centru District Court discontinued the proceedings in the case lodged by the second applicant on the grounds that the President enjoyed immunity. The court gave the following reasoning in its decision:

“Having heard the arguments of the parties and having analysed the materials of the case, the court considers well founded the plea of the representative of the defendant to strike the case out.

The Constitution guarantees a large immunity to the chief of the state. Thus, Article 81 para. 2 of the Constitution provides as follows: ‘The President of the Republic of Moldova shall enjoy immunity. He may not be held legally responsible for opinions expressed in the exercise of his mandate’.

For elucidating the limits of this constitutional immunity, the court refers to judgment Nr. 8 of 16 February 1999 of the Constitutional Court. Giving its interpretation to Article 71 of the Constitution, the Constitutional Court held that legal responsibility encompasses responsibility under criminal, civil and administrative laws.

The Constitutional Court also gave an explanation to the meaning of the expression ‘opinions expressed in the exercise of his mandate’ ruling that it means the point of view, opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life. From the meaning of the judgment of the Constitutional Court, the court considers that the independence of the opinions of the President of the Republic of Moldova in the exercise of his mandate is absolute and perpetual.

In her action lodged with the court, plaintiff V. Pavlicenco relies on Articles 16 and 1422 of the Civil Code and asks for the President of the Republic of Moldova to be held liable under civil law, namely for the opinions expressed by him publically in a programme in the exercise of his mandate.

In view of the circumstances described above, bearing in mind the principle of the presidential immunity enjoyed by the President of the Republic of Moldova and of the impossibility to hold him responsible under law, the court comes to the conclusion that the present case must be struck out of the list of cases because in this case the President of Moldova cannot be held liable either by a court or by any other bodies.”

Both applicants appealed, arguing that Article 81 § 2 of the Constitution afforded immunity to the President only in respect of opinions he expressed and not in respect of statements of fact. Moreover, they argued that the impugned statements made by the President had not been in connection with the exercise of his official functions, and that the court of first instance had failed to determine whether that had been the case. In support of that argument, the second applicant pointed to the President’s official duties as enumerated in the Constitution, and to the fact that some of the topics discussed during the television programme, such as problems in the economy, foreign affairs and the functioning of parliament, fell outside the scope of the President’s official functions.

The second applicant also stressed that the accusation made against her (that she had belonged to the KGB) was very offensive, and had been made by a very important person in the State at a prime-time hour on a channel with national coverage. Even if the President had been exercising his official functions when participating in the television programme, the defamatory accusations made against her could not be considered part of those functions. Both applicants complained that the first-instance decision had unjustifiably limited their right of access to court, in breach of the Constitution and Article 6 of the Convention.

On 3 February 2005 and 14 June 2007 the Chișinău Court of Appeal dismissed the applicants’ appeals and upheld the judgments at first instance.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1979 and lives in Baku.

He is a person with a Category 2 disability.

The applicant is an independent journalist and the chairman of the Institute for Reporters’ Freedom and Safety (“IRFS”), a non-governmental organisation specialising in the protection of journalists’ rights. He also worked as a reporter for the news agency Turan Information Agency.

On 14 June 2008 a group called the “Che Guevara Fan Club” held a gathering at a private café in Baku to celebrate the eightieth anniversary of the birth of Che Guevara. The café in question was located in the basement of a building in the city centre and there were about twenty-five attendees in the gathering. The applicant, accompanied by two other colleagues (R.A. and M.H.) from the IRFS, attended this gathering.

The gathering began at noon and approximately thirty minutes later about thirty police officers entered the café. Some of them were in police uniform and others were in plain clothes. They suspended the gathering and announced that they were going to take the attendees to the police station.

The applicant identified himself, informing the police officers that he was a journalist and the chairman of the IRFS. He had with him his identity card and the card confirming that he was the chairman of the IRFS. The applicant also asked the police officers to identify themselves and to release his arrested colleagues. He further informed the Turan Information Agency by telephone about the police intervention. In response, one of the police officers, who was apparently in charge of the intervention, ordered other police officers to take the applicant to the police station.

According to the applicant, he was taken to a police car by four police officers, who used force against him. In particular, they punched and kicked him in the stomach.

In support of his version of events, the applicant relied on written eyewitness statements from R.A. and M.H., dated respectively 23 June 2008 and 24 June 2008, who confirmed that the applicant had informed the police officers that he was a journalist and the chairman of the IRFS before asking the police officers to release them. A police officer had then instructed other police officers to arrest the applicant and they had used force against him while taking him to a police car.

After his arrival at the police station, the applicant had been separated from the others who had been arrested and had been taken to the office of the Deputy Head of Nasimi District Police Station no. 22, A.K. Four police officers had entered the room and had threatened the applicant in the presence of A.K. One of the police officers, O.A., had, according to the applicant, shouted at him and had taken out his gun. Hitting his gun on the table, he had shouted “I can eliminate you”, “I can arrest you”, “I can send you to jail”. Then he had pushed down the applicant’s head by pressing on the back of his neck so that his head hit the table. The applicant had warned the police officer that he was a person with a Category 2 disability and that his health was fragile. At that point O.A. had struck the applicant in the neck with his elbow; as a result, the applicant had lost consciousness.

In support of his version of events, the applicant relied on the above-mentioned written eyewitness statements from R.A. and M.H. In particular, R.A. submitted in his witness statement that, when he was in the corridor in the police station, the applicant was taken to the office of the Deputy Head of Nasimi District Police Station no. 22. He had then heard someone who was shouting at the applicant saying “I can eliminate you”, “I can send you to jail”.

When the applicant regained consciousness, he had asked the police officers to call an ambulance because he did not feel well. They allegedly refused to do so, but had taken him out of the room. The applicant’s colleagues had seen him in the corridor and had asked other members of the IRFS to call an ambulance. They had also informed the media about the applicant’s ill-treatment by the police.

In the meantime, some journalists, human rights defenders and youth movement activists who had been informed of the arrest of the applicant and his colleagues had begun gathering in front of the police station.

At around 4 p.m. two police officers accompanied the applicant to the door leading out of the police station, but the applicant had been able to take only a few steps and had then again lost consciousness. In support of his version of events, the applicant relied on written eyewitness statements from I.A. (journalist), R.H. (civil society activist) and M.A. (director of the Turan Information Agency), who were at that time present in front of the police station. The witnesses stated that, when the applicant was taken out of the police station, he was unconscious and was taken by an ambulance, which was called by them, to hospital.

At 5.20 p.m. the applicant was admitted to hospital with the diagnosis of traumatic brain injury and contusion of the soft tissues around the nape of his neck. The applicant remained in the intensive care unit of the hospital for four days. He was released from hospital on 25 June 2008.

The events of 14 June 2008 attracted significant public and media interest both inside the country and internationally. In particular, a number of human rights organisations, including Human Rights Watch, Amnesty International, expressed concern over the applicant’s arrest and ill-treatment by the police, asking the domestic authorities to conduct an effective investigation into the incident.

On 14 June 2008 the police intervened in the gathering in question on the basis of a complaint from people living in the neighbourhood of the café, who complained about noise and the behaviour of those attending. The applicant and other attendees who were unable to produce their identity cards were taken to the police station but were released once their identity had been established. During his stay at the police station the applicant was not ill-treated by the police.

A criminal inquiry was launched by Nasimi District Police Station no. 22 in connection with the information about the applicant’s admission to the Clinical Medical Centre with injuries.

On 15 June 2008 the applicant was questioned in hospital by an investigator from Nasimi District Police Station no. 22. The applicant described in detail the circumstances of his arrest and detention by the police on 14 June 2008. In particular, he stated that on 14 June 2008 he had attended the gathering commemorating the eightieth anniversary of the birth of Che Guevara, which had been interrupted by a police intervention. When he protested about the arrest of his journalist colleagues on the orders of the police officer who was apparently in charge of the intervention, four police officers forcibly took him to a police car. Following his arrival at Nasimi District Police Station no. 22, he was taken to the room of the Deputy Head of the police station. Other police officers were also in the room and one of them, who was wearing black sunglasses, began insulting him. He then began threatening him, took out his gun and shouted at him. The same police officer also struck him in the neck, as a result of which he lost consciousness. The police officers then took him out of the room.

While the criminal inquiry was still pending, on 17 June 2008 the spokesman for the Ministry of Internal Affairs, E.Z., in an interview with the Turan Information Agency, stated as follows concerning the applicant’s arrest and alleged ill-treatment by the police:

“The statements made to the media by the chairman of the Institute for Reporters’ Freedom and Safety, Emin Huseynov, alleging that he was subjected to duress by the police are not true. Even the allegations published in the media are contradictory.”

He further continued:

“On 14 June a group of people held an unauthorised gathering at a café. The police requested the interruption of the unauthorised gathering. Twenty people were taken to Nasimi District Police Station no. 22 in order to establish their identity and to conduct the relevant explanatory interviews (izahat işləri). They were all released following the explanatory interviews. At that time, Emin Huseynov said that he did not feel well. An ambulance was called immediately. It was established during the medical examination that his health problem was related to his previous diseases. It was established during the medical examination that E. Huseynov had lost consciousness because his blood pressure reached 190.”

According to the applicant, he was examined by a forensic expert in hospital on 18 June 2008. The forensic report dated 23 June 2008 provides that the examination began on 15 June 2008 and ended on 20 June 2008 without specifying the exact date of the applicant’s examination by the forensic expert in hospital. The forensic report of 23 June 2008 reads:

“Questions addressed to the forensic expert:

What kind of injuries are there on E. Huseynov’s body? What are their degree of gravity and characteristics? In which order and with which instrument were they inflicted? Could these injuries be sustained as a result of a fall, a beating or were they inflicted by E. Huseynov himself?

Does the date of infliction of the injuries on the body of citizen E. Huseynov correspond to the date indicated in the descriptive part of the decision?

Information about the case

It appears from the decision that a report in connection with the information that citizen E. Huseynov, who resides in ..., has sustained injuries was assigned to me. E. Huseynov, who was questioned during the inquiry, stated that on 14 June 2008 a person that he did not know had struck him in the neck in Nasimi District Police Station no. 22. Citizen E. Huseynov attended the Clinical Medical Centre in connection with his injuries.

The examination was carried out in the resuscitation and intensive care unit of the Clinical Medical Centre of the Baku City Main Health Department in the presence of the lawyer Rashid Hajili. According to the person examined, at approximately 12.30 p.m. – 1 p.m. on 14 June 2008 during an event dedicated to the eightieth anniversary of the birth of Che Guevara in café Alaturka, plain clothes persons took him and other attendees to Nasimi District Police Station no. 22. He was struck in his head at that moment and later at the police station. He replies in detail and precisely to the questions about the incident and other questions.

The person examined is a man of medium height, normal build and slightly overweight.

No injuries or objective signs of injury were noticed on the hairy part of the head, the face and other parts of the body.

It appears from medical record no. 5190 of the patient of the Clinical Medical Centre of the Baku City Main Health Department that at 5.20 p.m. on 14 June 2008 E. Huseynov, who is 29 years old, was admitted to the resuscitation and intensive care unit by a team from emergency unit no. 2 with the diagnosis of traumatic brain injury and contusion of the soft tissues around the nape of the neck (qapalı kəllə beyin travması, ənsə nahiyəsinin yumşaq toxumlarının əzilməsi). It was not possible for him to describe his complaints when he was admitted to hospital. According to those who brought him to hospital, the patient sustained the injury as a result of a beating. His general state was serious. The skin and mucous membrane were of ordinary color. The respiration was vesicular. The respiratory rate was 19 breaths per minute, the blood pressure was 190/120 mm Hg, the heart pulse was beating 120 per minute. The abdomen was not hard and there was no pain. Neurological status: his conscious awareness was impaired to the point of deafness. His reaction to bright light was positive, he turned away from it. His pupils and tendon reflexes were at equal distance from each side and they were alive. Meningitis symptoms and pathological reflexes were not observed. In the examination no injury was noticed on the skin. Diagnosis: neurological reaction (nevrotik reaksiya). At 5.25 p.m. on 14 June 2008 the patient, who was in a serious neurological state (nevrotik vəziyyət), was directly admitted from the admission unit to the resuscitation and intensive care unit. His conscious awareness was in soporous state. The tendon and corneal reflexes were alive. The skin and mucous membrane which may be observed by eye were pale. The blood pressure was 190/110 mm Hg, the heart pulse was beating 116 per minute. The respiration was normal and sufficient. The urination was normal. Hb-120 g/l, leucocytes 8,4-10 g/l. On 15 June 2008 there was no pathological change in side projected X-ray examinations of side and neck vertebras of the cranium. At 10 a.m. on 15 June 2008 the comment of the doctor on duty: the patient’s state was stable. He was conscious and replied to questions. His pupils were at equal distance from each side and corneal reflexes were alive. There were no meningitis elements. The skin and observable mucous membrane were pale ... (illegible), the heart pulse was beating 96 per minute, the blood pressure was 130/90 mm Hg ... (illegible), the respiratory rate was 20 breaths per minute ... (illegible). His tongue was wet, the abdomen was not hard, the urination was adequate. It was written in the summary of the cerebral computed tomography opinion dated 17 June 2008 that intraparenchymal traumatic pathological changes were not observed in E. Huseynov. In the computed tomography examination of 17 June 2008 pathological change in the neck area and traumatic change in the neck part of the vertebral column were not revealed. In the ultrasound examination of 17 June 2008 no liquid was revealed in the abdomen and there was no hematoma in the parenchymal organs. It was noted in the log dated 17 June 2008 that an examination was carried out by the doctors, the experts in neurotrauma, A.Y. and Q.I., the head of the resuscitation and intensive care unit, V.R., the experts in resuscitation, C.N. and F.T., and the following were noted: his general state was stable, he complained about headaches. The blood pressure was 120/70 mm Hg, the heart pulse was beating 88 per minute. Neurological status: he was conscious and adequately replied to questions. His pupils and tendon reflexes were at equal distance from each side and they were alive. No change was observed in the cranial-brain nerves. There were no meningitis symptoms. Taking into account the patient’s subjective complaints, it was desirable to subject him to a computed tomography examination. Bearing in mind the patient’s state, it was decided that the further examination and treatment of the patient be continued in the neurotrauma department. It appears from the subsequent log that the patient was examined jointly by the assistant professor M. and the head of the department. It was further indicated that E. Huseynov’s illness was related to extended osteochondrosis of the vertebral column, numerous disc protrusions in the back and neck areas (C 4-5, C 5-6, C 6-7, L 3-4, L 5, S 1), chronic dyscirculatory encephalopathy and vestibulopathy. His treatment in connection with the above-mentioned diseases is ongoing. Clinical diagnosis: neurological reaction, vertebrogenic syndrome, C 4-5, C 5-6, C 6-7 intervertebral disc protrusions, paroxysmal vein distention.

The forensic expert: C.A.

Conclusion

Relying on the forensic examination of E. Huseynov, born in 1979, and the content of the medical documents, I conclude as follows in reply to questions addressed in the decision:

No injuries or objective signs of injury (bruise, abrasion, wound, swelling, etc.) were noticed on the body of E. Huseynov.

E. Huseynov’s in-patient treatment was related to his previous diseases - extended osteochondrosis of the vertebral column, numerous disc protrusions in the back and neck areas (C 4-5, C 5-6, C 6-7, L 3-4, L 5, S 1), chronic dyscirculatory encephalopathy and vestibulopathy.”

The applicant was not provided with a copy of the forensic report.

On 25 June 2008 Nasimi District Police Station no. 22 issued an explanation (arayış) concerning the police intervention of 14 June 2008. The relevant part of this document, signed by the Head of Nasimi District Police Station no. 22, M.T., reads:

“On the basis of the information that about fifty people had gathered at café “Alaturka” in the basement of building no. 6 at 28 May Street in Baku on 14 June 2008, at around 1 p.m. police officers from the Baku City Police Office took measures in order to identify the persons gathered in this place and to establish the purpose of the gathering, and twenty-two of them were taken to Nasimi District Police Station no. 22.

After these individuals had arrived at Police Station no. 22 at 1.55 p.m., they were registered in the “apprehended persons’ registration log” (gətirilmiş şəxslərin qeydiyyat kitabı) and were released at 4.30 p.m. At the police station, their identity was established and statements were taken from nine of them in order to establish the purpose of their gathering in that location.

... At the police station, their identity was established and they were released following a “prophylactic conversation” (profilaktik söhbət). It was also established that Huseynov Emin Rafik oglu, who presented a document stating that he was the chairman of the Institute for Reporters’ Freedom and Safety, was among the persons apprehended...”

By a decision of 27 June 2008, the investigator refused to institute criminal proceedings, finding that there was no evidence that the applicant had been ill-treated by the police. The relevant part of the decision reads:

“It was established during the examination of patients’ reception log in the Clinical Medical Centre that citizen E. Huseynov was admitted to the hospital with the diagnosis of neurological reaction at 5.20 p.m. on 14 June 2008. This was also noted in extract no. 5196, dated 20 June 2008, from the patient’s in-patient and out-patient medical record provided by the Clinical Medical Centre.

In connection with the above-mentioned, the forensic report no. 143/TM of 23 June 2008, ordered on 15 June 2008, which was carried out by ... provides in reply to the questions addressed to the expert, on the basis of E. Huseynov’s forensic examination and the content of the medical documents, that no injuries or objective signs of injury (bruise, abrasion, wound, swelling, etc.) were noticed on the body of E. Huseynov and that E. Huseynov’s in-patient treatment was related to his previous diseases - extended osteochondrosis of the vertebral column, numerous disc protrusions in the back and neck areas (C 4-5, C 5-6, C 6-7, L 3-4, L 5, S 1), chronic dyscirculatory encephalopathy and vestibulopathy.

It appears from the evidence collected in connection with the fact that citizen Huseynov Emin Rafik oglu had sustained an injury and from the forensic report dated 23 June 2008 ... that there were no injuries or objective signs of injury on E. Huseynov’s body. As no criminal act has been established in this respect, it is appropriate to refuse to institute criminal proceedings.”

The applicant was not informed of the decision of 27 June 2008 concerning the investigator’s refusal to institute criminal proceedings.

On 16 March 2009 the applicant lodged a criminal complaint with the Nasimi District Court. Relying on Articles 3, 5, 10 and 11 of the Convention, he complained that he had been ill-treated by the police during his arrest and whilst in police custody, and that the domestic authorities had failed to conduct an effective investigation in this respect. The applicant further complained that he had been unlawfully deprived of his liberty and that the police intervention of 14 June 2008 had been unlawful and had constituted an unjustified interference with his rights to freedom of expression and assembly. The applicant pointed out, in particular, that the investigator had questioned neither the police officers who had been involved in the ill-treatment nor the other witnesses. He also stated that he had not learned about the existence of the investigator’s decision of 27 June 2008 until 3 March 2009 and that he had never been provided with a copy of the forensic report.

On 31 March 2009 the Nasimi District Court dismissed the applicant’s complaint, finding the investigator’s decision lawful. The court’s decision was silent as to the applicant’s particular complaints. The relevant part of the decision reads:

“... It was established during the examination of patients’ reception log in the Clinical Medical Centre that citizen E. Huseynov was admitted to the hospital with the diagnosis of neurological reaction at 5.20 p.m. on 14 June 2008. This was also noted in extract no. 5196, dated 20 June 2008, from the patient’s in-patient and out-patient medical record provided by the Clinical Medical Centre.

It appears from the forensic report ... that no injuries or objective signs of injury (bruise, abrasion, wound, swelling, etc.) were noticed on E. Huseynov’s body. It was noted that E. Huseynov’s in-patient treatment was related to the previous diseases ... that he had suffered.

Therefore, the court considers that in carrying out a preliminary examination in compliance with Article 207 of the Code of Criminal Procedure for establishing whether there were sufficient basis to institute criminal proceedings the investigator took all the necessary steps and, as it was not established that there had been a criminal element in the examined fact, a justified and lawful decision on refusal to institute criminal proceedings was adopted.”

On 6 April 2009 the applicant appealed against this decision, reiterating his previous complaints. He also complained that the investigator had not arranged an identity parade including the police officer O.A. and neither had he questioned the police officers involved in his arrest and detention and, in particular, the Deputy Head of the Nasimi District Police Station no. 22 in whose room and whose presence he had been ill-treated. He had failed to obtain video recordings from security cameras situated in the police station in question. The applicant also disputed the conclusions of the forensic report, pointing out that he had not been provided with a copy of it.

On 27 April 2009 the Baku Court of Appeal upheld the first-instance court’s decision.

In the meantime, the applicant also lodged a civil action against the Nasimi District Police Office, asking for compensation. Relying on Articles 3, 5, 10 and 11 of the Convention, he complained that he had been ill-treated by the police, that he had been arrested and taken to the police station unlawfully, and that the police intervention in the gathering had constituted an unlawful interference with his rights to freedom of expression and assembly. In support of his claim, the applicant relied on written eyewitness statements from R.A. and M.H., who stated that police officers had used force against the applicant during his arrest. They also stated that when the applicant was in the room of the Deputy Head of Nasimi District Police Station no. 22, they had heard someone shouting at the applicant “I can eliminate you”, “I can send you to jail”. When the applicant had been taken out of the room, he did not feel well.

On 25 July 2008 the Nasimi District Court refused to admit his action, finding that it did not comply with the procedural requirements for lodging a complaint.

On 2 September 2008 the Baku Court of Appeal upheld the first-instance court’s decision.

On 17 November 2008 the Supreme Court quashed the Baku Court of Appeal’s decision and remitted the case to the lower courts for a new examination.

On 17 June 2009 the Nasimi District Court, having examined the applicant’s action on the merits, decided to dismiss it. The court found that the applicant had been taken to the police station because he had not had his identity card on him. The court also held that the police intervention had been lawful, since the gathering at the café in the city centre disturbed other people present and consequently the police had intervened. As regards the applicant’s alleged ill-treatment, the court held that it had not been established that the applicant had been ill-treated by the police. The relevant part of the judgment reads:

“It was established at the court hearing that an investigator from Nasimi District Police Station no. 22 had examined the fact that E. Huseynov had sustained injuries, that it had been decided to refuse to institute criminal proceedings on the basis of the collected materials because no criminal act had been established, and that this decision had not been challenged.

Moreover, it was established at the court hearing on the basis of witness statements that the applicant had been taken to Nasimi District Police Station no. 22 because he had not had his identity card on him, that he had been detained for a certain period of time, and that he had been then released following the establishment of his identity.

It was also established at the court that E. Huseynov had been previously sustained brain injury and regularly underwent medical treatment in Azerbaijan and abroad for a long period of time. Unexpected health problems were previously observed in his case and the fact that he had felt unwell after having been brought to the police station was not related to any duress, but to his previous illness.

Furthermore, it was not established at the court hearing that the applicant had sustained a bodily injury or subjected to physical violence, beaten or been under duress at the police station.”

On 3 August 2009 the applicant appealed against this decision, reiterating his previous complaints.

On 14 October 2009 the Baku Court of Appeal dismissed the applicant’s appeal.

On 7 May 2010 the Supreme Court upheld the lower courts’ judgments.