The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and have given addresses in GPE and GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .

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

The applicants , who are brothers , run an international diamond business , which involved , inter alia , importing diamonds to the family business in GPE , GPE . They state that in DATE the family business took the decision not to import diamonds from NORP countries which were undergoing civil war or political instability .

By resolution CARDINAL ( DATE ) of DATE , ORG imposed an embargo on the export of diamonds by ORG due to that organisation 's role in the continuing war in GPE . In paragraph CARDINAL , it requested GPE to take measures against persons or bodies which violated the sanctions and to impose appropriate penalties . On DATE , ORG formally adopted sanctions , binding on its member states . By DATE , GPE and GPE had adopted legislation to give effect to resolution DATE . The legislation as amended in GPE prohibited the importation into GPE of diamonds from GPE unless certified by ORG .

On DATE , in answer to a parliamentary question , Mr PERSON , the Minister of State at ORG responsible for LOC , gave a written response stating inter alia ;

“ We fully support ORG sanctions against ORG ... We have also called for stricter enforcement of sanctions by all ORG member states . ... The GPE fully implements ORG sanctions decided upon by ORG Information concerning potential breaches of sanctions by GPE nationals or companies is passed immediately to the appropriate GPE enforcement authorities . ”

On DATE , in answer to further questions about Government measures to enforce ORG sanctions , PERSON stated :

“ It is vital that private individuals and companies engaged in breaking the law by deliberately breaching the ORG sanctions on ORG are stopped . I can inform the ORG that we are referring to the ORG sanctions committee and its expert panels the details of CARDINAL such individuals which we hope that they will be able to follow up ... ”

On DATE , PERSON stated in the ORG :

“ We are ready to name , shame and take action where we can on those who break sanctions . For example , we would take action in respect of the illegal provision of ORG with supplies , without which it could not keep on fighting in GPE . I have named in the ORG several people included in breaking ORG sanctions by supplying ORG and I shall now name more . PERSON is involved in exporting diamonds to GPE for ORG . Based in NORP , GPE , GPE paid a DATE fee to NORP officials to enable him to operate without interference . We estimate that in DATE PERSON was moving MONEY worth of diamonds per DATE . His brother , PERSON , is carrying out similar activity for ORG in GPE . PERSON , a NORP pilot , flies diamonds for PERSON from GPE , via GPE ... Those individuals are making money out of misery . It is vital that all the ORG , agencies and companies where they operate take urgent action to stop their illegal activities ... We have passed these names to the ORG and in particular to ambassador PERSON , for his work on ORG responsible for tackling ORG and GPE generally . ”

This declaration was published in ORG and was available on the parliamentary website . The press reported on the matter , repeating the names of the persons included in the declaration – this included a report from ORG on CARDINAL DATE repeated by ORG , an article in the ORG on DATE and an article in the NORP newspaper ORG on DATE . PERSON declaration was repeated in ORG by the deputy minister for foreign affairs on DATE .

The applicants stated that an investigation was opened into the allegations by the parquet in GPE in DATE . No proceedings have since ensued . The applicants provided a letter dated DATE from the GPE procureur stating that the investigation had been closed with a decision not to prosecute or issue charges . A letter ( undated but apparently sent in DATE ) from the NORP Foreign Minister to a NORP Member of ORG stated that the NORP secret service had provided information to the NORP secret service but that it had not been established on the basis of that information that PERSON was guilty of the acts that Mr PERSON had accused him of .

By letter dated DATE , the first applicant wrote to Mr PERSON denying the facts imputed by the Minister and requesting a meeting with himself and his brother . On DATE , Mr PERSON replied that he stood by the statement which he had made , that the matter was in the hands of ORG and that he saw no need for a meeting .

On DATE , the Panel of Experts assisting ORG stated in a report that it has received information from several sources that PERSON had been involved in importing diamonds to GPE for ORG and that similar allegations had been made publicly . It considered that further investigation was warranted and passed on the information to the Chairman of ORG .

On DATE , following disclosure of the letter by the NORP Minister for ORG , the first applicant 's counsel wrote to Mr PERSON requesting that he retract his allegations publicly and meet with the first applicant on his visit to GPE in DATE , or alternatively , to waive the parliamentary privilege attaching to his statements in order to permit the first applicant to take proceedings in the courts . No response was received to this letter .

In the report of ORG dated DATE , a detailed analysis of the status of the sanctions on diamond trading in the region was made . PERSON was named as the junior partner in the GPE firm of PERSON which had created ORG that had been the largest mining operation in the NORP valley before the imposition of sanctions . In the additional report dated DATE reporting on the enforcement of sanctions , no mention was made of either applicant .

Since then the applicants have alleged that the stigma attaching to their reputation has led to other businesses refusing to trade with them e.g. providing CARDINAL letters referring to the appearance of the name of CARDINAL of the applicants in ORG documents concerning diamond smuggling .

Words spoken by MPs in the course of debates in ORG are protected by absolute privilege . This is provided by LAW , which states :

“ ... the freedome of speech and debates or proceedings in ORG ought not to be impeached or questioned in a court or place out of Parlyament . ”

The effect of this privilege was described by Lord Chief Justice PERSON in the case of Ex parte PERSON ( DATE ) QB CARDINAL at CARDINAL :

“ It is clear that statements made by Members of either ORG of ORG in their places in the ORG , though they might be untrue to their knowledge , could not be made the foundation of civil or criminal proceedings , however injurious they might be to the interest of a third party . ”

Statements made by MPs outside ORG are subject to the ordinary laws of defamation and breach of confidence , save where they are protected by qualified privilege .

The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest . In the case of ORG [ DATE ] CARDINAL AC CARDINAL , which concerned allegations made in the NORP press about an NORP political crisis in DATE , Lord PERSON of GPE stated in ORG , at page CARDINAL :

Depending on the circumstances , the matters to be taken into account include the following . The comments are illustrative only . CARDINAL . The seriousness of the allegation . The more serious the charge , the more the public is misinformed and the individual harmed , if the allegation is not true . CARDINAL . The nature of the information , and the extent to which the subject matter is a matter of public concern . CARDINAL . The source of the information . Some informants have no direct knowledge of the events . Some have their own axes to grind , or are being paid for their stories . CARDINAL . The steps taken to verify the information . CARDINAL . The status of the information . The allegations may have already been the subject of an investigation which commands respect . CARDINAL . The urgency of the matter . News is often a perishable commodity . CARDINAL . Whether comment was sought from the plaintiff . He may have information others do not possess or have not disclosed . An approach to the plaintiff will not always be necessary . CARDINAL . Whether the article contained the gist of the plaintiff 's side of the story . CARDINAL . The tone of the article . A newspaper can raise queries or call for an investigation . It need not adopt allegations as statements of fact . CARDINAL . The circumstances of the publication , including the timing . ”

Press coverage , to the extent that it fairly and accurately reports parliamentary debates , is generally protected by a form of qualified privilege which is lost only if the publisher has acted “ maliciously ” . “ Malice ” , for this purpose , is established where the report concerned is published for improper motives or with “ reckless indifference ” to the truth . A failure to make proper enquiries is not sufficient in itself to establish malice , but it may be evidence from which malice ( in the sense of reckless indifference to the truth ) can reasonably be inferred .

MPs can waive the absolute immunity which they enjoy in ORG as a result of LAW , which provides :

“ ( CARDINAL ) Where the conduct of a person in or in relation to proceedings in ORG is in issue in defamation proceedings , he may waive for the purposes of those proceedings , so far as concerns him , the protection of any enactment or rule of law which prevents proceedings in ORG being impeached or questioned in any court or place out of ORG .

( CARDINAL ) Where a person waives that protection –

( a ) any such enactment or rule of law shall not apply to prevent evidence being given , questions being asked or statements , submissions , comments or findings being made about his conduct , and

( b ) none of those things shall be regarded as infringing the privilege of either ORG of ORG .

( CARDINAL ) The waiver by CARDINAL person of that protection does not affect its operation in relation to another person who has not waived it .

( CARDINAL ) Nothing in this section affects any enactment or rule of law so far as it protects a person ( including a person who has waived the protection referred to above ) from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG . ”

General control is exercised over debates by the Speaker of each ORG of ORG . Each ORG has its own mechanisms for disciplining Members who deliberately make false statements in the course of debates . Deliberately misleading statements may be punishable by ORG as a contempt . Alternatively , as the parliamentary ORG on Procedure ( DATE ) has observed :

“ ... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the ORG . He can approach his Member of ORG with a view to his tabling DATE , or an amendment where appropriate ; there may be cases which can be raised through Questions if some ministerial responsibility can be established ; he can petition the ORG , through a Member ; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified . We believe that in these circumstances , the ORG would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another , particularly if the latter was the source of the statement complained of , and so long as the courtesies of proper notification were observed . ”

A ORG of both ORG was set up in DATE and tasked with reviewing the law of parliamentary privilege . ORG received written and oral evidence from a wide variety of sources from within GPE and abroad and held CARDINAL sessions of evidence in public . Its report was published in DATE . LAW sets out its conclusions on parliamentary immunity :

“ CARDINAL . The immunity is wide . Statements made in ORG may not even be used to support a cause of action arising out of ORG , as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in ORG as proof of malice . The immunity is also absolute : it is not excluded by the presence of malice or fraudulent purpose . Article CARDINAL protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly . ... In more precise legal language , it protects a person from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG .

A comparable principle exists in court proceedings . Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation . The rationale in the CARDINAL cases is the same . The public interest in the freedom of speech in the proceedings , whether parliamentary or judicial , is of a high order . It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy .

It follows that we do not agree with those who have suggested that members of ORG do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government . Unlike members of ORG , local councillors are liable in defamation if they speak maliciously . We consider it of utmost importance that there should be a national public forum where all manner of persons , irrespective of their power or wealth , can be criticised . Members should not be exposed to the risk of being brought before the courts to defend what they said in ORG . Abuse of parliamentary freedom of speech is a matter for internal self - regulation by ORG , not a matter for investigation and regulation by the courts . The legal immunity principle is as important DATE as ever . The courts have a duty not to erode this essential constitutional principle . ”

LAW provides :

“ a. ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions .

b. The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph a above . For this purpose ORG shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members . In addition , a special agreement shall be concluded with ORG of GPE defining the privileges and immunities which the ORG shall enjoy at its seat . ”

In pursuance of paragraph b above , the member GPE , on DATE , entered into LAW . This provides , as relevant , as follows :

“ Representatives to ORG and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions . ”

“ During the sessions of ORG , ORG and their substitutes , whether they be members of ORG or not , shall enjoy :

a. on their national territory , the immunities accorded in those countries to members of ORG ;

b. on the territory of all other member GPE , exemption from arrest and prosecution . ... ”

LAW to the General Agreement on Privileges and Immunities of the Council of Europe provides :

“ Privileges , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . ”

LAW on the Privileges and Immunities of ORG , adopted in accordance with LAW establishing a ORG and a ORG of ORG , provides :

“ Members of ORG shall not be subject to any form of inquiry , detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties . ”


The applicant , PERSON , is a NORP national , born in DATE and living in LOC ( GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The applicant is the owner of a private motor vehicle which he also uses in the course of his professional activities with the permission , granted on CARDINAL DATE , of the regional director for industry , research and the environment .

On DATE the applicant ’s son , accompanied by a friend , was driving the car when he was stopped for a customs inspection . The customs officers found QUANTITY of heroin , whereupon the applicant ’s son and his friend admitted that they had been to the GPE to acquire drugs for their personal use .

On DATE ORG convicted the applicant ’s son of drug smuggling and drug use . The ORG also ordered that the vehicle used to commit the smuggling offence should be forfeited to the customs authorities . The applicant ’s son lodged an appeal against the judgment relating solely to the forfeiture of the vehicle .

On DATE ORG upheld the judgment ordering the forfeiture on the following grounds :

“ The vehicle was lawfully seized under LAW .

Under LAW , any smuggling offence involving prohibited goods results in the forfeiture of the vehicle .

Liability to forfeiture is incurred whenever an offence has been committed ( Court of Cassation , Criminal Division – “ PERSON . PERSON . ” , DATE ) .

Moreover , it is clear that the vehicle was used to commit the offence .

The case law provides the following clarification of the position :

– The statutory provision requiring the forfeiture of vehicles used for smuggling is general and absolute and makes no exception in respect of vehicles without which it would have been impossible to bring smuggled goods in or out . It suffices that they were used in CARDINAL way or another . ( PERSON . PERSON . DATE )

– Courts which find that a vehicle was used for smuggling can not refrain from ordering their forfeiture save where they find extenuating circumstances as provided by LAW , which makes no reference to LAW and is not covered by LAW CARDINAL of DATE .

Accordingly , this court allows the authorities’ application and upholds the judgment of ORG since , in view of the seriousness of the offences of which he is accused , [ the applicant ’s son ] is not entitled to plead extenuating circumstances under customs law . ”

The applicant was not notified of either the judgment of DATE or that of DATE .

In a letter of DATE the applicant ’s lawyer asked the customs authorities to return the applicant ’s private vehicle to him along with some personal effects ( a pair of gloves , a pair of hunting boots , CARDINAL knives and a pack of cards ) .

On DATE the applicant ’s lawyer sent a further letter repeating his request and stating that the applicant refused to pay any sum , however small , to recover his vehicle .

In a letter of CARDINAL DATE the interregional director of customs stated that the applicant could recover his personal effects , as he had already been told during a telephone conversation on DATE . Regarding the vehicle , the director informed him that he was “ prepared to accept a friendly settlement for the transfer of the vehicle ... in return for payment in cash of ORG CARDINAL,CARDINAL ( MONEY ) ” .

The relevant provisions of LAW read as follows :

“ CARDINAL . When seized goods are not prohibited an offer to release the vehicle from judicial seizure shall be made subject to security from a reliable guarantor or deposit of the value .

NORP That offer and the reply thereto shall be recorded in the official report .

The vehicle shall be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage , rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession . However , restitution is subject to the reimbursement of any costs incurred by the customs authorities for the holding and safe keeping of the seized vehicle . ”

“ District courts shall adjudicate disputes relating to the payment or reimbursement of duties , applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts . ”

“ CARDINAL . Seized or forfeited objects may not be claimed by the owners , nor may the value of the vehicle , whether deposited or not , be claimed by creditors , including secured creditors , save through action against the party who committed the customs offence .

Once time limits for lodging appeals , third party applications and sales have expired , all actions for restitution and other actions shall be inadmissible . ”

“ ORG shall hear the following cases , subject to appeal :

( CARDINAL ) ORG relating to refusal to pay customs duties , applications to set aside an order to pay , failure to discharge liabilities imposed by transit bonds and other customs cases ; ... ”

Finance Amendment Law no . DATE of DATE amended LAW by adding a third paragraph providing for the establishment of an exceptional procedure where owners have acted in good faith . The reform was intended to resolve problems in applying Article CARDINAL § CARDINAL resulting from the increase in vehicle rental and leasing contracts by allowing the situation of various vehicle rental , leasing and public transport or freight companies to be resolved by absolving them from guarantor and deposit requirements as long as there was proof of good faith and a contract had been negotiated .

This statutory system has been progressively supplemented by case - law . ORG has clarified that this was the only legal remedy that an owner acting in good faith could use to have his vehicle restored as a civil claim in criminal proceedings against a person who had committed a customs offence would be inadmissible because the loss or damage complained of was not the direct result of the offences at issue ( PERSON . PERSON . , DATE , Bulletin criminel – “ Bull . crim . ” no . CARDINAL ) .

On DATE ORG also established the principle that paragraphs CARDINAL of Article CARDINAL should be read separately :

“ Under LAW , the vehicle must be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage , rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession , regardless of the nature of the goods transported . ” ( Bull . crim . no . CARDINAL) .

Furthermore , in a judgment of DATE ORG established the principle that the district courts had jurisdiction to hear applications for restitution under ORG CARDINAL and ORG the ORG Code which , when combined with LAW ,

“ assign[ed ] jurisdiction to rule on the restitution of vehicles seized during these operations to the district court of the place in which the seizure took place . Under these circumstances and provided that the ship - owner was not implicated in the criminal proceedings the impugned judgment rightly upheld ORG decision that it had jurisdiction ” .

In this ruling ORG also specified that the provisions of Article CARDINAL applied both to the seizure carried out by the customs authorities and to the forfeiture ordered by the courts and moreover that the civil courts were under no obligation to defer their decision pending the outcome of the criminal proceedings .

“ Under certain circumstances specified therein , LAW entitles owners acting in good faith of vehicles seized because they were used for smuggling to have their vehicle returned without the need for a guarantor or a deposit even when a criminal court has ordered their forfeiture . It follows that criminal proceedings during which such orders are issued can not have any influence on any future decisions in civil proceedings to establish ownership . ” ( PERSON . PERSON . DATE , ORG . crim . no . CARDINAL ; ORG CARDINAL-IV , p. CARDINAL ) .

The jurisdiction of the district courts was reconfirmed in a judgment of CARDINAL DATE ( PERSON case ) in the following terms :

“ District courts hear disputes relating to the payment or reimbursement of duties , applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts . Under Articles CARDINAL and CARDINAL of the Customs Code , the criminal courts hear cases relating to petty and lesser indictable customs offences and all customs matters raised as a defence . It follows that the district courts have primary jurisdiction to hear these cases provided that they fall within the jurisdiction of the ordinary courts . ”

In this judgement , ORG also extended the scope of LAW , taking the view that this provision allowed any vehicle to be returned to owners acting in good faith , without the need for a guarantor or a deposit , even if there was no contract between the owner and the offender who had used the vehicle .


Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (national proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE ( GPE ) .

On DATE a Mr S. was fatally injured by a shot fired at a Gypsy encampment in GPE . The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing .

On DATE the GPE investigating judge made an order for the applicant 's detention pending trial . However , the order could not be enforced as the applicant had become untraceable . As a result , the NORP authorities considered that he had deliberately evaded justice and on DATE declared him to be a “ fugitive ” ( latitante ) . The applicant was identified as PERSON ( or PERSON ) PERSON ( or PERSON ) , probably born in PERSON on DATE , the son of PERSON ( or PERSON ) and the brother of PERSON ( ou PERSON ) PERSON ( or PERSON ) .

As the NORP authorities had not managed to contact the applicant to invite him to select his own defence counsel , they assigned him a lawyer , who was informed that his client and CARDINAL other persons had been committed for trial on a specified date in ORG .

The lawyer attended the hearing , but the applicant did not .

NORP In a judgment of DATE , the text of which was deposited with the registry on DATE , ORG convicted the applicant of manslaughter and illegally carrying a weapon and sentenced him to DATE and DATE imprisonment . CARDINAL of the applicant 's co - defendants was sentenced to DATE and DATE imprisonment for the same offences , while the CARDINAL others were acquitted .

The applicant 's lawyer was informed that ORG judgment had been deposited with the registry . He decided not to avail himself of his right of appeal under NORP law . The applicant 's conviction accordingly became final on DATE .

On DATE the applicant was arrested in GPE by the NORP police under an arrest warrant issued by the GPE public prosecutor 's office . On DATE the NORP Minister of ORG requested the applicant 's extradition . He added that , once he had been extradited to GPE , the applicant would be entitled to apply under LAW of LAW ( “ the ORG ” ) for leave to appeal out of time against ORG judgment .

At the request of the NORP authorities , the GPE public prosecutor 's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him . The public prosecutor 's office was not in a position to say whether the applicant had contacted the lawyer assigned to represent him . In any event , the lawyer had attended the hearing and had played an active role in conducting his client 's defence , having called a large number of witnesses . Furthermore , ORG had clearly established that the applicant , who had been identified by numerous witness as PERSON killer , was guilty . In the opinion of the public prosecutor 's office , the applicant had absconded immediately after PERSON death precisely to avoid being arrested and tried . Lastly , the public prosecutor 's office stated :

“ A person who is to be extradited may seek leave to appeal against the judgment . However , for a court to agree to re - examine the case it has to be proved that the accused was wrongly deemed to be a ' fugitive ' . To sum up , a new trial , even in the form of an appeal ( during which new evidence may be submitted ) , is not granted automatically . ”

On DATE the NORP authorities refused ORG extradition request on the ground that the requesting country 's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened .

In the meantime , the applicant had been released on CARDINAL DATE .

The relevant parts of LAW and CARDINAL of the ORG provide :

“ A person convicted in absentia ... may apply for leave to appeal out of time against the judgment where he is able to prove that he was not effectively notified [ of the judgment ] ... [ and ] on condition that there has been no negligence on his part or , if the judgment delivered in absentia has been served ... on his lawyer ... , that he has not deliberately refused to apprise himself of the steps taken in the proceedings .

An application for leave to appeal out of time must be lodged within DATE of the date ... on which the accused learned [ of the judgment ] , failing which it shall be inadmissible . ”


The applicant , a NORP citizen born in DATE , is a construction engineer residing in GPE in GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .

On DATE at CARDINALhCARDINAL TIME the applicant was driving a car in PERSON in GPE when he was stopped by the police . His blood level was checked , disclosing an alcohol level of QUANTITY .

On DATE ORG of the GPE of GPE ( PERSON ) withdrew the applicant 's driving licence for DATE .

On DATE ORG ( PERSON ) issued a penal order ( PERSON ) in which it found the applicant guilty of driving under the influence of alcohol . It imposed on him a prison sentence of DATE suspended on probation for DATE as well as a fine of MONEY ( CHF ) . No appeal was filed against this penal order which acquired legal force .

Against the decision of ORG of CARDINAL DATE the applicant filed an appeal in which he complained of the length of the withdrawal of his driving licence . The appeal was dismissed by ORG ( ORG - kommission ) of the GPE of GPE on DATE .

The applicant filed an administrative law appeal ( PERSON ) with ORG ( PERSON ) in which he complained that he had not had a public hearing as required by LAW , and that the measure imposed on him was excessive . In its judgment of CARDINAL DATE the ORG considered , with reference to NORP doctrine and practice , that LAW was applicable to the case concerning the withdrawal of a driving licence . Thus , even if the matter had already been decided by the criminal judge , the authorities withdrawing the driving licence were “ determining a criminal charge ” within the meaning of this provision . According to LAW , the applicant should have had an oral hearing which he did not have . As a result , the ORG quashed the decision of the lower court .

Proceedings were resumed before ORG . By letter of CARDINAL DATE the President of the Commission informed the applicant of the public hearing ( öffentliche Verhandlung ) fixed for DATE in which the applicant would be questioned and the lawyer would have the opportunity to comment on the evidence . A representative of ORG would also have the possibility to speak .

The applicant 's lawyer replied on DATE that he intended to plead the case fully and not merely to limit himself to comment on the evidence . Any limitation in this respect would contradict the purpose of an oral hearing .

By letter of CARDINAL DATE the President of ORG informed the applicant 's lawyer as follows :

“ In reply to your letter of CARDINAL DATE I can inform you that on DATE there shall not be a ' trial ' ( ' PERSON ' ) but a public hearing ( öffentliche GPE ) of the appellant , based on LAW .

As a lawyer of the appellant you may be present at the hearing and you may thereafter comment thereupon . If at the hearing new legal issues arise you will have the opportunity to express yourself .

I would explain this manner of proceeding essentially as follows . The appeals proceedings continue to be in writing ... Despite a public hearing they are not replaced by oral proceedings . It is therefore not admissible to repeat or to add appeal grounds in open court ( an GPE ) . In the present case , the exchange of statements has occurred long ago and the content is known to the court . “

By letter of CARDINAL DATE the applicant 's lawyer replied that the oral hearing should be the same as a trial conducted in criminal proceedings , and that he would speak before the court on his complaint of ne bis in idem .

By letter of CARDINAL DATE the President informed the applicant 's lawyer of a judgment of ORG according to which the principle ne bis in idem was not breached in the applicant 's situation . The letter continued : “ it can be left open whether this statement ( ORG ) is admissible in court ” .

The hearing before ORG took place on DATE . The President prepared notes for this hearing which mentioned its conduct and contained prepared statements for each stage . According to the notes , the applicant was first questioned . The notes continue :

“ I now wish to give the floor to [ the applicant 's lawyer ] . He may comment on the duration of the withdrawal of the licence based on the questioning of the appellant . Actual legal explanations which amount to a repetition of the written appeal statement are not admissible . Thus , the exchange of written statements has been closed , the content of the case - file is known to the court . In this sense I now ask ( the applicant 's lawyer ) to take the floor .

( To the extent that [ the applicant 's lawyer ] evidently departs from this topic , he must be admonished . Possibly there should be a reproach ( S. CARDINAL of LAW ) if [ the applicant 's lawyer ] continues along the same lines . A disciplinary fine should only be imposed in last resort . )

..... listen to the statements of [ the applicant 's lawyer ]

..... at the end thank [ the applicant 's lawyer ] for his statement . ”

A representative of ORG was heard , and the applicant was given the final word .

On DATE ORG gave its judgment in which it dismissed the applicant 's appeal . The judgment recalled that the applicant had been questioned at the hearing ; that his lawyer had been able to make comments ; that the applicant had been given the final word ; and that the applicant 's lawyer had disagreed with this procedure , requesting a trial corresponding to criminal proceedings .

The judgment continued that the topic of the appeal was limited in that the administrative authority was bound both factually and legally by the result of the criminal proceedings . As a result , the main topic in the applicant 's case was the length of the withdrawal of the driving licence . With reference to LAW found that the withdrawal of a driving licence resembled in many respects a criminal sanction , but it remained an administrative measure in respect of which written proceedings were in principle called for .

The judgment then dealt with the applicant 's complaint of ne bis in idem which he had raised in open court and also in his letter of CARDINAL DATE . This principle was not breached as the withdrawal of a driving licence was an administrative measure which was distinct from the penal sanction . Both the criminal and the administrative authority were called upon to consider all sanctions in their entirety when meting out the punishment . The judgment concluded that the applicant could not be acquitted on this ground , “ independently thereof whether it was admissible to raise this matter at all in open court ” .

The applicant filed an administrative law appeal in which he complained , inter alia , of a breach of ne bis in idem and that at the hearing his lawyer had on a number of occasions been interrupted and admonished not to make any pleadings .

The appeal was dismissed by ORG on DATE . Insofar as the applicant complained that he had not had an oral hearing as required by LAW , the ORG noted that the applicant was heard orally and publicly before ORG , and the applicant 's lawyer was able to comment in court on ne bis in idem . To the extent that the lawyer complained that he had been interrupted when speaking on this matter , he had not claimed that he had been unable to comment on the points relevant for the judgment .

In respect of the applicant 's complaint of a breach of ne bis in idem , the ORG found that the criminal judge and the administrative authority had different jurisdictions , and this was not called in question by the criminal nature of the withdrawal of the driving licence within the meaning of LAW .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON .

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

On DATE the applicant and his wife obtained a divorce decree . On CARDINAL DATE the applicant ’s ex - wife filed with ORG ( Sąd Rejonowy ) a petition for division of the matrimonial property .

On DATE ORG gave a decision . Both parties appealed . On DATE ORG ( PERSON ) quashed the first - instance decision and remitted the case .

In DATE the applicant ’s ex - wife donated her share in the disputed property to ORG and ORG , who became parties to the proceedings .

On DATE the applicant sent a letter to the Minister of ORG , complaining about the slow progress of the proceedings . On DATE , in reply to his complaints , the President of ORG acknowledged that the proceedings were indeed lengthy .

Prior to CARDINAL DATE , ORG held a number of hearings and obtained several expert reports .

On DATE the ORG gave a decision . The court granted ownership of the entire property ( plot of land and a house ) to PERSON and PERSON The court also ordered them to pay off the applicant ’s share in the estate .

On DATE , on the applicant ’s appeal , ORG partly amended the first - instance decision . On DATE the applicant lodged a cassation appeal .

In DATE PERSON and ORG sold their share in the property to a certain PERSON On DATE ORG ( Sąd Najwyższy ) quashed the decision of CARDINAL June DATE and remitted the case to ORG ( PERSON ) .

On DATE ORG issued an interim order allowing the applicant to install central heating in his part of the house . On DATE , upon an appeal by PERSON , ORG quashed this decision .

It appears that the proceedings are pending before ORG .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , a town in LOC . ORG ( “ the Government ” ) were represented by PERSON PERSON , former Representative of GPE at ORG , and PERSON , Representative of GPE at ORG .

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

The applicant is a bailiff . In DATE ( according to the applicant ) or DATE ( according to ORG ) the applicant sued his employer , ORG , for unpaid TIME shifts and overtime .

On DATE the Justice of ORG of GPE ordered the Ministry to recalculate the applicant ’s salary from DATE , to pay arrears , and to amend the applicant ’s contract .

On DATE the ORG of GPE upheld this judgment on appeal and the judgment became binding . It was gradually enforced by DATE .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE .


The applicant is a NORP national born in DATE . He is a milling machinist and is currently detained in Włodawa prison .

DATE the applicant served a prison sentence . In DATE he informed the medical service of NORP Opolskie prison that he had pain in his testicles . The applicant submits that after his problems with the testicles had started in DATE , until his release on probation in DATE he was treated only by a dermatologist and a surgeon while his condition had called for a treatment by an urologist .

In DATE the applicant underwent a surgery in ORG . It resulted in the removal of his left testicle on which a cyst had been found .

On DATE the applicant was detained after he had attempted to commit a murder .

On DATE the applicant was examined by a physician but did not complain about any significant medical problems .

DATE and DATE the applicant was detained in the psychiatric ward of ORG where he underwent observation . During his stay in that facility the applicant was also examined by a surgeon who diagnosed an infection of the testicle . The surgeon prescribed antibiotics and decided that the applicant qualified for a surgery . However , the applicant informed the Director of ORG that he would agree to the surgery only after the surgeon who was to perform it confirmed in writing that it would not cause any damage to the testicle and that there would be no further metastasis of the cyst . That statement was considered by the prison health service as a refusal to undergo the surgery .

In the meantime , the applicant sent letters to the Governor of PERSON prison , the Director of ORG and ORG , in which he requested that he be examined by an urologist and an oncologist . On DATE ORG informed the applicant that , according to the information he had received from ORG , the applicant ’s condition did not call for an examination by an oncologist and that he would be offered surgery as soon as he agreed to it .

On DATE the applicant was transferred from ORG to PERSON prison .

On DATE the applicant was admitted to the urology clinic of the Rzeszów ORG . On DATE he was examined by an urologist who recommended that the applicant undergo surgery . In a letter of DATE , the Deputy Director of ORG informed the Governor of PERSON prison that the applicant could undergo a surgical treatment in that facility after having agreed to it .

DATE the applicant remained in ORG .

On DATE the Penitentiary Judge replied to the applicant ’s letter of CARDINAL DATE in which he had claimed that his state of health had called for his release from the prison . The judge pointed out that after the applicant ’s brother had raised a complaint in that regard , ORG together with the Chief Medical Officer of the prison service had conducted an investigation which had showed that the complaint was ill - founded . Moreover , the applicant had not reported any significant problems during his first medical examination on DATE . The judge also considered that , after the applicant had complained about his state of health , he had received proper medical treatment . He further observed that the applicant himself had made surgery impossible since he had refused to undergo it without a written guarantee that it would be successful , a statement which could not be made by any health service .

On DATE the applicant had an ultrasound scan of the testicle administered in the surgical ward of ORG . It showed a presence of a cyst .

In a letter of CARDINAL DATE the Penitentiary Judge informed the applicant that his requests for oncological treatment were unfounded as his medical record showed that his condition was not due to cancer .

On DATE the applicant was examined by an urologist and agreed to the surgery . On DATE the Director of the Rzeszów Prison Surgery issued a health certificate stating that the applicant ’s testicle should be removed in the urological ward of ORG .

On DATE the Director of ORG informed the applicant that his complaint about inadequate medical treatment in LOC Surgery was ill - founded .

On DATE the applicant was examined in the urological ward of ORG .

On DATE the applicant filed with ORG an action against ORG in which he claimed compensation for inadequate medical treatment provided by the prison health service . In particular , he claimed that his medical problems with his testicles had started in DATE while he had been detained and had worked in unhealthy conditions . The applicant further contended that he had been treated by doctors with inappropriate specialisations and had been refused surgical treatment .

On DATE ORG exempted the applicant from the court fees . On an unspecified later date he was granted legal aid .

On DATE an urological surgeon issued an expert opinion on the applicant ’s state of health , as requested by ORG . He stated that the applicant had received adequate medical treatment during his detention . The opinion referred to an ultrasound examination of the applicant ’s testicle administered in DATE in the urological ward of ORG and to an examination on DATE in the urological ward of ORG . It pointed out that those examinations had showed that the applicant ’s testicle was in a good condition , which proved the adequacy of the pharmaceutical treatment received by the applicant .

On DATE the applicant submitted to ORG written pleadings in which he challenged the conclusion of the expert opinion and requested that he be again examined by doctors . On an unspecified date the court ordered that the applicant be re- examined by another court - appointed expert . The examination took place on DATE in the urological ward of ORG . It consisted of CARDINAL physical examinations of the applicant ’s testicle and prostate gland and an ultrasound of the testicle . The expert opinion issued on the basis of those examinations concluded that the applicant had received proper medical treatment during his detention and that his condition did not call for either surgical or further pharmaceutical treatment . On DATE , the Penitentiary Judge informed the applicant that he considered his complaint about inadequate medical care , which the applicant had lodged during an interview with the judge held on DATE , to be ill - founded . On DATE ORG dismissed the applicant ’s action , considering that the evidence before it had proved the applicant ’s claim to be unfounded . On DATE ORG dismissed the applicant ’s appeal against the judgment of ORG .

On DATE the Penitentiary Judge informed the applicant that he would not grant his request to be examined by a medical panel since the medical opinion issued on DATE by FAC Surgery had stated that the applicant could be treated in that facility .

Since DATE the applicant has complained about his state of health to numerous institutions including , inter alia , the President of GPE , the ORG , a member of parliament and the prison administration .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant , Mr PERSON , is an NORP national , who was born in DATE . He is detained at ORG , PERSON . He is represented before ORG by PERSON , a lawyer practising in GPE , GPE .

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

NORP On TIME CARDINAL DATE , DATE woman , ORG , was raped both vaginally and anally in the course of a burglary at her home . Soon afterwards , ORG gave a statement to the police in which she stated CARDINAL black men had broken into her house and she had been raped by a large black man with an ordinary LANGUAGE accent . She stated that she had the impression that the men were older than teenagers but could not be sure . In the course of the police investigation , semen was found on her nightdress , on a bed sheet and on swabs taken from her body . The samples were placed in storage . No - one was charged at the time of the offences and ORG died in DATE .

NORP The applicant is white , slightly built and has an NORP accent . He was DATE at the time of the offences . In DATE his DNA was found to match that found on the nightdress and bed sheet . He was arrested , charged with rape , false imprisonment , buggery and burglary , and went to trial before a judge and jury at the ORG from CARDINAL–CARDINAL DATE . The applicant ’s defence was that he had been having an affair with ORG and that they had consensual sex on a number of occasions , the last being DATE before the rape took place , which explained the DNA on the bed sheet and nightdress . He denied , however , that he had been responsible for the burglary and rape .

At the start of the trial the prosecution applied for ORG ’s police statement to be read to the jury under section CARDINAL of LAW DATE . The trial judge allowed the application . He considered that it was proper to have regard to the likelihood of it being possible for the defence to controvert the statement of the witness by the defendant himself giving evidence and/or calling evidence of other witnesses . He noted that , while the evidence of ORG was important , and without it there would be no prosecution , it was not the sole or decisive evidence in the prosecution case . The trial judge further considered the defence complaint that they could not explore the grounds for ORG ’s belief that she had been raped by a black man and could not be examined as to the affair the applicant said they had been having . The trial judge took the view that these were important matters but could be addressed by an appropriate direction to the jury in his summing up .

After ORG ’s statement had been read to them , the police officer who took the statement gave live evidence to the effect that ORG was well - spoken , “ old school ” , stoic , and prim and proper . ORG had told the police officer that she had not married until she was DATE , that she had been a virgin when she had married and that she and her husband had sexual intercourse infrequently .

The jury also heard evidence from ORG ’s friends to whom she had confided that she had been raped by a black man . The friends also gave evidence that ORG had been a lively , intelligent and active woman , who was involved in her local church . She had developed a tendency to be forgetful after she turned DATE .

A neighbour , ORG , aged CARDINAL at the time of trial , also gave evidence that she and ORG had met the applicant at a café . She ( ORG ) had exchanged numbers with him . She had seen him a few times afterwards , once in the company of a black man . ( The applicant denied this last part of her evidence . ) They had slept together once . ( The applicant maintained it was on CARDINAL occasions . ) To her knowledge , the applicant and ORG had never met each other after their meeting at the café .

The jury also heard expert evidence that the chances of the DNA on the bed sheet and nightdress belonging to someone other than the applicant were CARDINAL in CARDINAL . There was also forensic evidence that the applicant ’s fingerprints had been found in CARDINAL places in ORG ’s home , including the window which had been forced open to obtain entry .

The prosecution also applied for leave to introduce the applicant ’s CARDINAL previous convictions for domestic burglaries , which had been committed DATE , on the ground that they were relevant to an important matter in issue between the defendant and the prosecution , namely whether the applicant had a propensity to burgle . The defence opposed that application , arguing that there was not a sufficient degree of similarity between the past burglaries ( which had not involved targeting the elderly or any sexual offences ) and the present case , where the principal charge was CARDINAL of rape . The trial judge nonetheless allowed the introduction of the previous convictions , agreeing with the prosecution that the test was only whether the applicant had a propensity to burgle and whether this was an important matter in issue between the defendant and the prosecution . He was satisfied that this was the case and was further satisfied that the admission of the convictions was not so prejudicial as to outweigh its probative value .

The applicant gave evidence in his own defence . He said that , after meeting ORG at the café , he had performed odd jobs for her , including repairing her window , which explained the fingerprints . In any event , given his previous experience of burglary , he would have known to use gloves , had he been the burglar . On CARDINAL occasions ORG had complained of joint or muscle pains and he had rubbed some oil on the painful areas . On a further occasion he had been helping ORG move items into her bedroom . He had made a pass at her and they had proceeded to make love on the bed . In total , they had sex on CARDINAL or nine occasions and at least twice in the bedroom . After the last occasion , on CARDINAL DATE , he finished his relationships with ORG and ORG and moved away from the area . He did so because he worked in the building industry and was obliged to move wherever there was work .

In respect of ORG ’s statement , the trial judge directed the jury in these terms :

“ ... you should examine it with particular care , bearing well in mind that it does have certain limitations which I draw your attention to now .

You have not had the opportunity of seeing or hearing [ ORG ] in the witness box or of assessing her as a witness . When you do see and hear a witness you may get a much clearer idea of whether their evidence is honest and accurate . Her statement was not made or verified on oath and her evidence has not been tested in cross - examination , and you have not had the opportunity of seeing how her evidence would have survived some form of challenge . Her statement only forms part of the evidence and it must be considered in the light of all of the other evidence in the case . You must reach your verdict having considered all of the evidence . You should also have regard to the following discrepancies between her statement and her complaint and the prosecution evidence and the discrepancy [ that ] she was adamant that she was raped by a black man . ”

The trial judge went to outline for the jury the ways in which they could test the reliability of ORG ’s statement , including the circumstances in which it was made , her comments to her neighbours after the rape , her lifestyle ( including her tendency , later in life , to become forgetful ) , whether the statement was supported by or consistent with the other evidence in the case , and whether ORG had any reason to be untruthful . He also instructed them that , to find the applicant guilty , they had to be sure that ORG had been wrong in thinking that a black man had been responsible . They also had to discount the possibility that ORG was having a secret affair with the applicant . Finally , the trial judge reiterated that the jury had to consider the amount of difficulty involved in challenging the statement in the absence of cross - examination .

In respect of the applicant ’s previous convictions , the jury were directed as follows :

“ The prosecution argue that those convictions are relevant because it establishes that the defendant has a propensity to burgle people ’s houses , as happened to [ ORG ] on TIME that she was also tied up , handcuffed , raped and buggered . If you agree , then the prosecution suggest that it makes it more likely that this defendant committed the offence alleged , namely , burglary . The defendant admits those convictions . You must decide whether it establishes a propensity in him to burgle [ ORG ] ’s home , in other words a propensity to commit burglary and therefore help you as to whether he is the burglar . The defence case , as you know , is that it was not this defendant , he was not the burglar and was not at the home of [ ORG ] on the night she was attacked , and in consequence could not and is not therefore guilty of any of these offences . ... So you must ask yourselves , does it establish the propensity that the prosecution contend for then if it does then it is a matter for you to judge how far that assists you in resolving the question of whether it was this defendant who acted as the burglar on this occasion , and whether , whilst burgling the property , it was him who tied up and sexually assaulted [ ORG ] .

Evidence of previous behaviour is only part of the evidence in the case . Its importance should not be exaggerated and it does not follow that just because the defendant behaved in a certain way in the past that he did so again on this occasion . Bad behaviour in the past can not alone prove guilt ; that is obvious . ”

The trial judge concluded his summing up by reminding the jury , as he had done at the starting of his summing up , of the respective cases of the defence and prosecution . He first summarised the defence case and then that of the prosecution .

On DATE , the applicant was convicted by the jury of rape , false imprisonment , buggery and burglary . The total sentence was CARDINAL of CARDINAL years’ imprisonment .

ORG The applicant appealed against his conviction , inter alia on the ground that the trial judge erred in admitting ORG ’s statement and the evidence of his previous convictions . He also argued that the trial judge ’s summing up had been unfair to him . On DATE the appeal was dismissed by ORG .

In respect of ORG ’s statement , the court concluded :

“ [ W]e in fact agree with the [ trial ] judge that the complainant ’s [ ORG ’s ] evidence was not the sole or decisive evidence , albeit it is true that the prosecution might not have been pursued without it . The significance of the complainant ’s statement was that it established that these offences had taken place . [ Counsel for the applicant ] conceded that had the statement not made any identification of the persons who had committed this offence , and had it merely established that the relevant offences had been committed , then he could not sensibly have opposed it being adduced before the jury . What makes the difference , he submits , is that there was this identification and he was not able to cross - examine in relation to it . It is , we have to say , a somewhat bizarre submission , given that the identification itself is , of course , the most powerful evidence in favour of [ the applicant ] .

It is true that the ORG was seeking to introduce the complainant ’s evidence and then seeking to persuade the jury that they could be sure that she was wrong about part of it , namely the colour of the attacker and that he had an LANGUAGE accent . As the court noted in NORP v. PERSON , PERSON [ DATE ] CARDINAL Cr . App . PERSON ) CARDINAL , there is no rule of law prohibiting the ORG from calling a particular witness in order to rely on a part only of the evidence . [ Counsel ] does not dispute that principle , but say that a different principle applied where the ORG is relying only on hearsay evidence . He referred us specifically to paragraph CARDINAL of the judgment of Lord PERSON in the PERSON case , where Lord PERSON said this , after referring to the provisions of the DATE Act :

“ I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness , who has given critical evidence in a statement that can be shown to be reliable , dies or can not be called to give evidence for some other reason . ”

[ Counsel for the applicant ] submits that the key here is that the ORG is not relying on the reliability of the statement . That is not entirely accurate . It is reliable , say the Crown , with respect to the fact that those offences were committed in precisely the way that the complainant alleges . What the ORG say is not reliable is the identification evidence which she provides . But the statement does not have to be reliable in every respect before it can be properly admitted .

In this case , in our judgment it would have been contrary to the interests of justice to deprive the court of this statement . Indeed , it would have the effect that this defendant would effectively be immune from conviction because a witness has died , which is precisely what the DATE Act was designed to prevent . In this case there was a strong prima facie case against the defendant on various serious charges and it would have been wrong , it seems to us , to have deprived the jury of an opportunity to consider his guilt because of the unfortunate death of the victim .

Accordingly , we consider that it was entirely in accordance with the principles in PERSON that this statement should be admitted . Insofar as it assisted the [ applicant ] to establish his innocence , it was in his favour . ”

In respect of the applicant ’s previous convictions , the court found that they were plainly relevant to a propensity to burgle , CARDINAL of the charges on the indictment . The court did not accept that , because a more serious charge was also on the indictment , it became unfair to admit the evidence .

For the trial judge ’s summing up , the court accepted that it might have been better if the judge , in his summary of the respective cases , had put the defence case last , but that was of no real moment . Moreover , although he had failed to refer to the fact that ORG had identified her attacker as a black man with an LANGUAGE accent , that was plainly at the forefront of the jury ’s mind ; it had been a fundamental pillar of the applicant ’s defence . The point had been made earlier in the summing up ; it was an unfortunate oversight on the part of the trial judge that it was not referred to specifically when the summary of the respective cases had been given , but nothing more .

The relevant provisions of LAW DATE and the judgment of ORG in PERSON and others [ DATE ] ORG are set out in PERSON and PERSON v. the GPE [ ORG ] , ORG . FAC and ORG , § § DATE and DATE , ECHR DATE .

Bad character evidence is regulated by LAW , LAW of LAW DATE . LAW defines evidence of a person ’s bad character as :

“ evidence of , or of a disposition towards , misconduct on his part , other than evidence which —

( a ) has to do with the alleged facts of the offence with which the defendant is charged , or .

( b ) is evidence of misconduct in connection with the investigation or prosecution of that offence . ”

Section CARDINAL allows for the admission of evidence of a defendant ’s bad character . It provides :

“ ( CARDINAL ) In criminal proceedings evidence of the defendant ’s bad character is admissible if , but only if— .

( a ) all parties to the proceedings agree to the evidence being admissible ,

( b ) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross - examination and intended to elicit it ,

( c ) it is important explanatory evidence ,

( d ) it is relevant to an important matter in issue between the defendant and the prosecution ,

( e ) it has substantial probative value in relation to an important matter in issue between the defendant and a co - defendant ,

( f ) it is evidence to correct a false impression given by the defendant , or .

( g ) the defendant has made an attack on another person ’s character .

( CARDINAL ) Sections CARDINAL to CARDINAL contain provision supplementing subsection ( CARDINAL ) .

( CARDINAL ) The court must not admit evidence under subsection ( CARDINAL ) or ( g ) if , on an application by the defendant to exclude it , it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it .

( CARDINAL ) On an application to exclude evidence under subsection ( CARDINAL ) the court must have regard , in particular , to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged . ”

Section CARDINAL , where relevant , provides :

“ ‘ Matter in issue between the defendant and the prosecution’

( CARDINAL ) For the purposes of section GPE ) the matters in issue between the defendant and the prosecution include —

( a ) the question whether the defendant has a propensity to commit offences of the kind with which he is charged , except where his having such a propensity makes it no more likely that he is guilty of the offence ;

( b ) the question whether the defendant has a propensity to be untruthful , except where it is not suggested that the defendant ’s case is untruthful in any respect .

( CARDINAL ) Where subsection ( CARDINAL)(a ) applies , a defendant ’s propensity to commit offences of the kind with which he is charged may ( without prejudice to any other way of doing so ) be established by evidence that he has been convicted of—

( a ) an offence of the same description as the one with which he is charged , or

( b ) an offence of the same category as the one with which he is charged .

( CARDINAL ) Subsection ( CARDINAL ) does not apply in the case of a particular defendant if the court is satisfied , by reason of the length of time since the conviction or for any other reason , that it would be unjust for it to apply in his case .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) —

( a ) CARDINAL offences are of the same description as each other if the statement of the offence in a written charge or indictment would , in each case , be in the same terms ;

( b ) CARDINAL offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of ORG .

( CARDINAL ) A category prescribed by an order under subsection ( CARDINAL ) must consist of offences of the same type .

( CARDINAL ) Only prosecution evidence is admissible under section GPE ) . ”

Section CARDINAL(CARDINAL ) defines “ important matter ” as a matter of substantial importance in the context of the case as a whole .


CASE OF MARKT INTERN VERLAG GMBH AND KLAUS BEERMANN v. GERMANY

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG The first applicant , markt intern , is a publishing firm , whose registered office is at GPE . The second applicant , Mr PERSON , is its editor - in - chief .

ORG intern , which was founded and is run by journalists , seeks to defend the interests of small and medium - sized retail businesses against the competition of large - scale distribution companies , such as supermarkets and mail - order firms . It provides the less powerful members of the retail trade with financial assistance in test cases , lobbies public authorities , political parties and trade associations on their behalf and has , on occasion , made proposals for legislation to the legislature .

However , its principal activity in their support is the publication of a number of bulletins aimed at specialised commercial sectors such as that of chemists and beauty product retailers ( " markt intern - Drogerie- und Parfümeriefachhandel " ) . These are DATE news - sheets which provide information on developments in the market and in particular on the commercial practices of large - scale firms and their suppliers . They are printed by offset and are sold by open subscription . They do not contain any advertising or any articles commissioned by the groups whose cause they espouse .

ORG intern claims to be independent . Its income is derived exclusively from subscriptions . It also publishes other series of bulletins containing more general consumer information , such as " ORG " , " Versicherungstip " and " ORG " , which are aimed respectively at taxpayers , holders of insurance policies and air travellers .

ORG On several occasions undertakings which had suffered from the applicants’ criticism or their calls for boycotts instituted proceedings against them for infringement of LAW of DATE ( PERSON gegen den unlauteren PERSON - " LAW " ) .

ORG On DATE an article by PERSON appeared in the information bulletin for chemists and beauty product retailers . It described an incident involving an NORP mail - order firm , ORG ( " the Club " ) , in the following terms :

" ‘ I ordered the DATE beauty set ... from ORG and paid for it , but returned it DATE because I was not satisfied . Although the order - form clearly and expressly stated that I was entitled to return the set if I was dissatisfied , and that I would be reimbursed , I have not yet seen a pfennig . There was also no reaction to my reminder of DATE , in which I gave them until DATE to ORG This is the angry report of PERSON , a chemist at GPE , concerning the commercial practices of this English ORG .

On DATE we telexed the manager of the ORG , PERSON , as follows : ‘ Is this an isolated incident , or is this part of your official policy?’ In its swift answer of DATE , the ORG claimed to have no knowledge of the set returned by PERSON or of her reminder of DATE . It promised however to carry out a prompt investigation of the case and to clarify the matter by contacting the chemist in GPE .

Notwithstanding this provisional answer from ORG , we would like to put the following question to all our colleagues in the chemists and beauty product trade : Have you had similar experiences to that of PERSON with ORG ? Do you know of similar cases ? The question of whether or not this incident is an isolated case or CARDINAL of many is crucial for assessing the ORG ’s policy . "

" ‘ PERSON beim Cosmetic - Club International das Schönheits - Set ... von DATE und bezahlt , aber wegen Nichtgefallen nach DATE ORG zurückgesandt . ORG klar und deutlich geschrieben steht , dass ich bei Nichtgefallen berechtigt bin , das Set zurückzusenden und mir GPE zugesichert wird , habe ich bis heute PERSON wiedergesehen . PERSON meine Abmahnung vom CARDINAL . Juni mit Fristsetzung CARDINAL . DATE erfolgte keine ORG So der empörte ORG PERSON über die PERSON importierten ORG .

ORG DATE an CCI - Geschäftsführerin PERSON : ‘ PERSON sich hier um eine PERSON , oder gehört dieses Verhalten zu LOC In seiner prompten LOC will der ORG weder etwas PERSON ihrer GPE i m Juni wissen . Er verspricht aber eine sofortige PERSON klärende PERSON der GPE in GPE .

PERSON vorläufigen ORG aus ORG unsere ORG an alle NORP : PERSON ähnliche ORG wie PERSON mit dem ORG gesammelt ? PERSON GPE bekannt ? Die Ein- oder PERSON solcher Fälle ist für die ORG äusserst wichtig . "

ORG Previously , on DATE and DATE and on DATE , markt intern had already published articles on the ORG and advised retailers and manufacturers to be cautious in their dealings with it because the ORG had failed to respect certain dates and promises . On DATE markt intern described as correct the ORG ’s statement in a legal pleading that " a change in the attitude of the industry show[ed ] that the call for a boycott [ had ] not failed to make an impression " .

ORG The ORG instituted proceedings in ORG ( ORG ) which , on DATE , pursuant to Articles CARDINAL and CARDINAL of the Code of Civil Procedure , issued an interim injunction prohibiting markt intern from repeating the statements published on DATE .

ORG Since the applicants had requested a decision as to the main issue ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) , the ORG instituted the appropriate proceedings within the time - limit laid down by the court . It asked the court

" to restrain markt intern from publishing in its information bulletins :

the statement that PERSON had given an angry account of the ORG ’s commercial activities to the effect that she had returned the beauty set - because she was dissatisfied with it - but had not been reimbursed despite sending a reminder ,

without stating at the same time that the ORG had immediately sent to PERSON an enquiry , which it had prepared , for submission to the postal authorities , and that it had assured her that it would reimburse her expenses ;

the statement that in its immediate response to markt intern , sent on DATE , the ORG had stated that it had no knowledge of the beauty set ’s being returned or of the reminder sent in DATE ,

without making clear at the same time that there was no intention to raise doubts as to the accuracy of the ORG ’s statement ;

the question asking colleagues of the chemists and beauty product retailers trade whether they had had similar experiences to that of PERSON or knew of similar cases - because it was of the greatest importance in assessing the ORG ’s policy to know whether this case was an isolated incident or whether there had been others ,

without making clear at the same time that it was not sought to insinuate that the ORG ’s official policy was to accept payment without immediately supplying the products due " .

ORG gave its decision on DATE . It dismissed the ORG ’s first head of claim because the statement was accurate and there was no reason to think that markt intern would disseminate it again without indicating what had occurred since the publication of its information sheet of DATE ( enquiries made to the postal authorities , etc . ) . On the other hand , it allowed the other CARDINAL heads of claim , basing its decision on LAW , according to which , " anyone who untruthfully alleges or disseminates a fact liable to affect adversely a person ’s creditworthiness or to cause him other disadvantages relating to his earning capacity or his career advancement , shall be liable to pay compensation for any such damage he may have caused " . It found that LAW was not applicable and left open the question whether the ORG could also rely on LAW .

In ORG view , in writing that the ORG claimed to have no knowledge of the return of the beauty set and of PERSON reminder ( the ORG ’s second head of claim ) , markt intern had not only expressed doubts as to the accuracy of this information but had also virtually asserted , without providing any proof , that the information provided was untruthful .

By inviting chemists to inform it of any " similar experiences " with ORG the ORG ’s third head of claim ) , markt intern had solicited information , which , if possible , was to be of a negative character regarding the ORG , despite the fact that there were not at that stage sufficient grounds to suggest that the ORG ’s commercial policy was reprehensible .

ORG acknowledged that economic activities were subject to critical review by the press . However , it considered that the principles of the protection of legitimate interests ( Article CARDINAL of LAW ) and of the freedom of expression ( LAW ) did not protect the repetition of untruthful statements .

The court concluded that the applicants’ conduct was culpable . ORG intern ought not to have generalised from the case of PERSON , the circumstances of which had not yet been clarified , and used it to formulate criticism of the ORG . This method of proceeding could not be reconciled with the obligations incumbent on journalists . The defendants ought to have begun by taking their enquiries further , but not in the form of their request for information from the retailers .

Under the terms of the judgment , for each contravention the applicants were liable to a fine ( NORP ) or detention ( NORP ) to be fixed by the court , but not exceeding DM CARDINAL or DATE , respectively .

ORG On DATE ORG found for the applicants and quashed ORG judgment .

In ORG view , LAW was not applicable because , by publishing its article on DATE , markt intern had not acted from competitive motives , in other words with a view to increasing the turnover of chemists and beauty shops , to the detriment of the ORG ; it had sought to inform its readers that the ORG had not dealt as it should have done with a matter concerning one of its own customers . Nor could the ORG rely on Articles CARDINAL and CARDINAL of LAW because the allegations published on DATE were not untruthful .

As regards the return of the beauty set and PERSON reminder ( the Club ’s first head of claim ) , the applicants’ statements had been consistent with their obligations as journalists . LAW ( Article CARDINAL ) in principle allowed unfavourable assessments regarding business services in so far as they sought to protect legitimate interests . Article CARDINAL of LAW recognised that the role of the press was to contribute to the forming of public opinion . Finally , there was no risk that markt intern would repeat this particular statement .

The statement that the ORG had claimed to have no knowledge of the beauty set and PERSON reminder ( " will ... weder ... noch ... wissen The form of words merely indicated to the readers that markt intern could not confirm the information provided by the ORG .

By its request for information from chemists ( the ORG ’s third head of claim ) , markt intern had not cited facts or made allegations suggesting that the incident in question represented the ORG ’s official policy . It had simply recommended that its readers verify the ORG ’s commercial practices and , indeed , had left open the question whether PERSON case was an isolated incident . It had of course expressed the opinion that it was , in its view , possible that there had been a number of other cases of the same type . This was , however , merely a value judgment .

ORG The ORG appealed to ORG which , on DATE , set aside ORG judgment and , varying ORG judgment , ordered the applicants to refrain from publishing in their information bulletin the statements disseminated by markt intern on DATE in the form referred to by ORG in its heads of claim at first instance ( see paragraph CARDINAL above ) .

For each contravention , the applicants were liable to a fine or detention to be fixed by the court , but not exceeding DM CARDINAL,CARDINAL or DATE , respectively .

ORG based its judgment on LAW CARDINAL of the CARDINAL Act , according to which :

" Any person who in the course of business commits , for purposes of competition , acts contrary to honest practices may be enjoined from further engaging in those acts and held liable in damages . "

" PERSON i m geschäftlichen FAC zu ORG des PERSON vornimmt , die gegen die PERSON , ORG in GPE genommen werden . "

( a ) Notwithstanding the lack of a competitive relationship between markt intern and the ORG , the CARDINAL Act was said to apply because it was sufficient in this respect that the contested conduct was objectively advantageous to an undertaking , to the detriment of a competitor . That was exactly the aim pursued in this instance . On these points , ORG referred to the established case - law , and in particular its own , concerning LAW .

In so far as ORG had held that the applicants did not intend to intervene in favour of the specialised retail trade to the detriment of the ORG , its judgment did not stand up to scrutiny . It had not taken sufficient account of all the circumstances nor attached the correct weight to the evidence adduced . Having regard in particular to the previous reports published by markt intern on ORG ( see paragraph CARDINAL above ) , ORG ought to have found that the applicants had not merely provided information as an organ of the press , but had embraced the interests of the specialised chemists trade and , in order to promote those interests , had attacked the ORG ’s commercial practices . ORG ought consequently to have concluded that markt intern intended to act in favour of the specialised trade and to the detriment of the ORG . In general , it was extremely unusual for the press and the news media to cite an isolated incident such as the case of PERSON - according to markt intern it could even have been simply " a breakdown in communications " - in order to raise immediately in public the controversial question whether this case reflected the ORG ’s official policy . ORG ought to have regarded markt intern ’s call for information from its readers concerning negative experiences of a similar type as an even more unusual step , which again revealed the intention to influence the market .

( b ) LAW was thus applicable in this case . It was infringed because the disputed statements were contrary to honest practices on the following grounds :

" By their publication of the article complained of ... , the respondents acted in a way contrary to honest practices within the meaning of section CARDINAL of LAW . It is immaterial in this connection whether the statements regarding the witness GPE ( first head of claim ) were true . The mere fact that a commercially damaging statement is true does not necessarily constitute a defence against a charge of acting in breach of the principles of fair competition . According to the rules of competition , such statements are acceptable only if they are based on sufficient grounds and if the manner and extent of the criticism in question remains within the limits of what is required by the situation because it is contrary to honest practices to engage in competition by making disparaging statements about competitors ( see ORG , PERSON ( " BGH GRUR " ) DATE , pp . CARDINAL and PERSON ) . In this case , at the time of the publication there was not sufficient cause to report this incident . The exact circumstances had not yet been clarified . The appellant in its reply had agreed to undertake an immediate investigation and to contact PERSON in order to clarify the position . The respondents were aware that criticism of the appellant could not be fully justified before further clarification had been sought , as they themselves had described the appellant ’s reply as a provisional answer . Accordingly , they should have taken into consideration that any such premature publication of this incident was bound to have adverse effects on the appellant ’s business , because it gave the specialised retailers an effective argument which was capable of being used against the appellant with their mutual customers , and one which could be used even if the incident should turn out to be an isolated mishap from which no conclusion could be drawn as to the appellant ’s business policy . In these circumstances , at all events at the time of the publication , there were not sufficient grounds for reporting this isolated incident . Such conduct is , moreover , very unusual in business competition .

As regards the second head of claim , the appeal on a point of law must be allowed for the simple reason that the sentence : ‘ ORG claimed to have no knowledge of the set returned by PERSON or of her reminder of June’ can be understood only in the light of the information contrary to honest competition which is referred to under the first head of claim . As , simply , an additional and related item of information , it qualifies for the same legal assessment , in particular because it was liable to strengthen the unfavourable impression which inevitably resulted from the mere recounting of the incident . ORG considered that this was no more than an illustration of the fact that the journalist had not been in a position to verify what had been told to him , but this observation conflicts with its earlier conclusion that the wording used expressed at least serious doubts as to the accuracy of the information and that in this case , consequently , the description of events put forward by the appellant was presented as being , probably , unreliable . ORG ought therefore to have stated on what basis it reached a conclusion contrary to the ordinary meaning of the words . It did not do so , so that it may be presumed that at least a significant proportion of the readers of the bulletin would interpret the words employed in accordance with general usage , which was liable to show the appellant in an even more unfavourable light .

ORG dismissal of the third head of claim was based on the following considerations . The question put to chemist and beauty store colleagues asking whether their experiences with the ORG had been similar to that of PERSON or whether they knew of similar cases , which was said to be very important in assessing the ORG ’s policy , indicated that the respondents considered it possible that a number of cases of this type had occurred . However , this merely represented a value judgment , and as such could not give rise to objections . Yet , under section CARDINAL of LAW , the decisive issue is not whether the statement is to be regarded as a value judgment or as an allegation of fact . The expression of a value judgment can also exert an unacceptable influence in the field of competition under section CARDINAL of LAW ( see BGH PERSON , p. CARDINAL - Betonzusatzmittel ) . In this case , there were in any event not sufficient grounds for such a sweeping suspicion . A single case of this type did not constitute evidence for suspecting immediately that the appellant ’s commercial policy was fraudulent . It is moreover contrary to honest commercial practices to solicit , in such circumstances and at such an early stage , compromising information .

As the respondents were aware of the circumstances giving rise to the criticism that they had acted contrary to honest practices , there can be no reservations , from the subjective point of view , against finding a contravention of LAW . As regards the risk of repetition , regard must be had to the principle laid down by ORG in its case - law , according to which , where the rules of competition are infringed , there is a presumption of fact that such a risk exists ( see ORG , civil cases ( " BGHZ " ) CARDINAL , pp . CARDINAL and CARDINAL - Constanze II ) . This is the case for articles in the press where - as here - the nature of the questions dealt with gives grounds for supposing that the debate was not closed by the publication of the first article ( ORG , pp . CARDINAL and CARDINAL - Alte Herren ; ORG , ORG ( " ORG " ) DATE , pp . CARDINAL and CARDINAL - Reichstagsbrand ) . The respondents have not put forward any legally valid evidence that the danger no longer existed . "

ORG The applicants then appealed to ORG , claiming a violation of the freedom of the press ( LAW ) .

Sitting as a committee of CARDINAL judges , ORG decided , on DATE , not to entertain the appeal . It considered that the appeal did not offer sufficient prospects of success , for the following reasons :

" As ORG held in its decision of CARDINAL DATE ( CARDINAL BvR CARDINAL/CARDINAL and others [ Entscheidungen PERSON , volume DATE , pp . CARDINAL - CARDINAL ] ) , the requirements which must be satisfied in order for freedom of expression and of the press to override other legal interests protected under statutes of general application are not fulfilled where an item published in the press is intended to promote , in the context of commercial competition , certain economic interests to the detriment of others . This is the case as regards the statements prohibited by ORG . The second sentence of LAW did not therefore require a different interpretation and application of LAW from that given by the judgment appealed .

As that decision is not based on a violation of the second sentence of LAW ( freedom of the press ) , it is immaterial that ORG did not , in the reasons given for its decision , expressly address the question of the scope of the freedom of the press in relation to the application of LAW . "

PERSON was not the only customer to complain about the ORG . CARDINAL others informed the applicants that they had encountered similar difficulties ; the first approached them before the publication of the bulletin of DATE and the second after it .

According to its own statements , the ORG sold CARDINAL beauty sets DATE and DATE . In DATE , CARDINAL identifiable persons returned the sets and were reimbursed .