The applicant is a NORP national , born in DATE and living in GPE . He is represented before the Court by PERSON , Mr PERSON , Mr PERSON and PERSON , lawyers practising in GPE .

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

Until DATE the applicant lived in the GPE attached to the PERSON district in the province of ORG . The applicant owns a piece of land and he had a house in the village .

In DATE and DATE the applicant , along with other villagers , was continually intimidated by the members of the security forces called “ special team ” . The villagers were subjected to food rationing imposed by the military commander of the district . The village was under military control and access to the village was subject to prior permission from the special teams . Subsequently , the majority of the villagers abandoned their village due to the pressure by the security forces .

In DATE the applicant gave the keys of his house to the commander in the village before he went to GPE in order to spend the DATE there . The applicant said to the commander that in case the security forces wanted to conduct a search in his house they could go in . He further said to the commander not to break the windows or the door of the house had they conduct a search . While in GPE the applicant learnt from his neighbours that on DATE his house had been burnt down by the security forces . The applicant returned back to his village and saw that his house and all its contents had been burnt .

The applicant was told by a commander called PERSON that his house had been burnt down by the terrorists .

A villager , G.A. , who had witnessed the burning of the houses in the village , told the applicant that his house , along with the other houses in the village , had been burnt with explosives installed by the security forces . The other villagers also told the applicant that only the houses of those who refused to abandon the village had been burnt down . The villagers further told the applicant that a commander called ORG had been conducting the burning of the houses .

On DATE the applicant filed petitions with the offices of the PERSON public prosecutor , the LOC , and the Governor for the state of emergency region . He stated that his house had been burnt down on DATE . He requested that an investigation be initiated about the burning of his house and asked for compensation for his losses .

On DATE the applicant filed petitions with the offices of the Prime Minister , the Minister of Interior and the Minister of State in charge of human rights . He requested that an investigation be initiated and that the perpetrators be identified about the burning of his house . He further requested compensation for his losses . The applicant received no replies to these applications .

In a letter dated CARDINAL DATE to ORG , GPE ve PERSON ) from the office of the ORG Governor it was stated that the villagers form the ORG , GPE , GPE , PERSON and GPE villages attached to LOC had complained that in DATE they had been given TIME by the security forces to abandon their villages . These villagers had further complained that their houses had been burnt by the security forces and requested that an investigation be initiated into their allegations . However , some of these houses had been destroyed by the DATE weather and some of them had been intentionally burnt down by the villagers in order to obtain compensation from the authorities . The houses in the PERSON village had been burnt down in the clashes with the ORG . The authorities were not responsible for the damages occurred .

On DATE the office of the Yayladere District Governor sent a letter in reply to the applicant stating that the authorities were not responsible for the burning of the houses . The applicant ’s house had been burnt in the clashes between the security forces and the terrorists on DATE . The applicant had alleged that he had left the keys of his house to the commander before he went to GPE . However , this allegation had been unsubstantiated .

On DATE the public prosecutor at ORG decided to join the CARDINAL applications that were previously registered with the office of the PERSON public prosecutor and that were transferred to his office . In his decision the prosecutor noted that the PERSON public prosecutor had issued a decision of lack of jurisdiction ( görevsizlik kararı ) on CARDINAL DATE ( decision no . CARDINAL ) concerning the clashes took place at the PERSON station between the security forces and the terrorists on DATE . The prosecutor decided to register the investigation file related to this event at his office . The prosecutor further noted that the PERSON public prosecutor had issued a decision of lack of jurisdiction ( görevsizlik kararı ) on CARDINAL DATE ( decision no . CARDINAL - CARDINAL ) concerning the burning of the applicant ’s house . The prosecutor finally decided to register the CARDINAL investigation files at his office under investigation file number DATE .

On DATE the applicant filed another petition with the office of the Yayladere District Governor . In this petition the applicant stated that he left his village in DATE and that his house had been burnt on CARDINAL DATE . He also asked compensation for his losses .

On DATE the applicant filed a petition with the office of the Prime Minister . In this petition the applicant stated that his house had been burnt in the clashes in DATE . He asked compensation for the losses he had sustained due to the destruction of his properties .

Administrative liability

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

Criminal responsibility

LAW makes it a criminal offence :

( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,

( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ,

( c ) to issue threats ( LAW ) ,

( d ) to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ,

( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,

( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or

( g ) to damage another ’s property intentionally ( Articles ORG ) .

For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with ORG or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Provisions on compensation

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .


Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant company is owned by Mr PERSON who lived in PERSON , which is situated on the territory of the present day PERSON , a part of GPE , until DATE when he fled to GPE and went to live in ORG .

On DATE the NORP Military Police requisitioned a vehicle belonging to the applicant company .

According to the Government the vehicle had been requisitioned by the military authorities from GPE . Upon the request by the military authorities from GPE for the return of vehicles which had been requisitioned in GPE for military purposes , in case that they were located in GPE , ORG conferred the applicant company 's vehicle after having found it . The vehicle was conferred to the NORP authorities on DATE and has ever since been in their possession .

According to the applicant the vehicle was requisitioned by the NORP authorities and conferred to the NORP para - military forces in GPE , the so - called ORG ( PERSON vijeće obrane ) . The applicant company repeatedly requested ORG to return the vehicle , but to no avail .

On DATE the applicant company filed a civil claim for damages in the amount of CARDINAL NORP PERSON ( ORG ) against GPE , with ORG ( GPE privredni sud u GPE ) . It appears that the case was subsequently transferred to ORG ( PERSON ) .

On DATE GPE filed its reply denying the plaintiff 's claim . It requested the court to stay the proceedings until the end of war in GPE . It stated further that the vehicle had been requisitioned only temporarily for needs of the army and would be returned to the applicant company after the war .

At the hearing on DATE the applicant company specified the claim for damages seeking CARDINAL NORP PERSON ( HRK ) .

On DATE the applicant company requested ORG to speed up the proceedings .

On DATE the court decided that an expertise be carried out in order to establish the value of the vehicle in question . The applicant company was invited to pay an advance for the costs of the expertise .

On DATE the case - file was assigned to an expert who submitted his opinion on DATE .

It appears that the defendant asked the court to stay the proceedings claiming that it was uncertain whether the applicant company still existed because the excerpt from the Banja Luka Court registry on the applicant company 's legal status was quite old .

On DATE the court invited the company 's representative to submit a new excerpt from the relevant registry .

NORP The applicant company 's legal representative informed the court that he no longer represented the applicant .

On DATE the applicant company requested the court to schedule a hearing .

On DATE the applicant company 's representative submitted an uncertified excerpt from ORG registry dating from DATE .

On DATE the court invited the applicant to submit a new excerpt , not DATE , showing that PERSON was entitled to represent the applicant company .

On DATE ORG introduced a change of LAW which provided that all proceedings concerning actions for damages resulting from acts of members of the NORP army or police when acting in their official capacity during the war in GPE were to be stayed .

On DATE the court stayed the proceedings pursuant to the above change in law .

On DATE the applicant company appealed against the above decision claiming that ORG erred in its application of the law as the vehicle in question was not taken by any member of the NORP army or police acting in an official capacity but exclusively for the needs of ORG , a military formation of GPE , operating in that country .

It appears that on DATE a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation . However , ORG has not yet adopted any decision .

On DATE ORG ( Županijski sud u GPE ) upheld ORG decision of DATE .

On DATE the applicant company filed a request for revision with ORG , repeating its arguments from the earlier appeal . On DATE ORG rejected the above request as inadmissible . It found that LAW ( Zakon o parničnom postupku ) allows a party to file a request for revision only against a final decision of an appellate court while the decision of ORG did not represent a final decision in that case .

On DATE the applicant company appealed against ORG decision .

On DATE ORG dismissed the appeal .

Section CARDINAL ( a ) of the CARDINAL Act on Changes of LAW ( Zakon o dopunama GPE o obveznim odnosima , ORG no . CARDINAL ) provides that all proceedings instituted against GPE for damages caused by the members of the NORP army or police when acting in their official capacity during the Homeland War in GPE from DATE to DATE are to be stayed .

The LAW also imposed an obligation on the Government to submit to ORG special legislation , regulating the responsibility for such damages , at the latest within DATE from the entry into force of the present Act . So far no new legislation has been introduced .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr C. ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the ORG opened an investigation against the applicant on suspicion of aggravated assault .

It appears that on DATE the applicant went to GPE . Subsequently , ORG ( Prokurator Rejonowy ) stayed the investigation since the applicant had not replied to the summons and his place of residence was unknown . On DATE ORG issued a search and arrest warrant in respect of the applicant on suspicion of aggravated assault .

On DATE the applicant was arrested by the police and subsequently the investigation against him was resumed . ORG laid additional charges against the applicant .

Subsequently , ORG applied to ORG ( Sąd Rejonowy ) for the applicant to be detained pending the investigation . On DATE ORG remanded the applicant in custody until DATE on suspicion of aggravated assault , handling stolen goods and forgery of a car body . It found that in the light of the evidence obtained , in particular witnesses’ testimonies , there was a strong likelihood that the applicant had committed the offences with which he had been charged . It also observed that there was a reasonable risk that the applicant would go into hiding given that he had been at large since DATE .

On DATE the ORG ( PERSON ) upheld that decision . It underlined that the applicant had been suspected of committing the offences in question DATE and DATE and that CARDINAL search and arrests warrants had been issued . It also observed that progress in the proceedings against the applicant had been impossible as he had gone into hiding for DATE . Further , it held that the applicant ’s detention was justified by the severity of the anticipated sentence .

It appears that the applicant ’s pre - trial detention was prolonged by ORG on DATE for an unspecified period .

On DATE the ORG ( Sąd Apelacyjny ) upheld ORG decision of DATE . In addition to the arguments previously invoked , it also found that on DATE of his arrest , the applicant had been using a forged driving licence . That , in the court ’s view , further warranted the prolongation of the applicant ’s detention so as to prevent him from absconding .

On DATE ORG ordered that the applicant undergo psychiatric observation . The relevant report was submitted to the prosecutor on DATE .

On DATE ORG extended the applicant ’s detention until DATE , relying on the same grounds as in the earlier decisions . That decision was upheld on appeal on DATE .

On DATE ORG ordered that the applicant be held in custody until DATE . It reiterated the grounds previously given .

On DATE the ORG filed a bill of indictment against the applicant . He was charged with attempted homicide , handling stolen goods , forgery of documents and a car body and having used a forged driving licence . The second defendant , PERSON , was charged with directly endangering the life of another person . The prosecution requested the trial court to hear evidence from CARDINAL witnesses .

On DATE ORG extended the applicant ’s detention until DATE . It considered , having regard in particular to the victim ’s evidence , that there was a strong suspicion that the applicant had committed the offences in question . It also observed that the applicant ’s continued detention was necessary in order to secure the proper conduct of the proceedings given the severity of the likely sentence . On DATE the ORG upheld ORG decision . It observed that the applicant ’s detention was necessary given the fact that he had evaded justice for DATE . It also noted that the severity of the sentence which could be imposed justified of itself the applicant ’s continued detention . It appears that the applicant ’s detention was subsequently extended on later unspecified dates .

On DATE ORG ordered that the applicant be held in custody until DATE , reiterating the grounds previously given .

On DATE ORG prolonged the applicant ’s detention until DATE . That decision was upheld by ORG on DATE . The courts repeatedly relied on the strong likelihood that the applicant had committed the offences with which he was charged . In addition , they had regard to the severity of the likely sentence and the fear that he might go into hiding if released . The latter was justified , in the courts’ view , by the length of time the applicant had evaded justice prior to his arrest and his having used a forged identity document .

ORG held CARDINAL hearings on the following dates : CARDINAL and DATE , DATE , DATE and DATE ; PERCENT , CARDINAL and DATE , DATE , CARDINAL and DATE , CARDINAL May , CARDINAL and DATE , CARDINAL DATE , CARDINAL , DATE and DATE . CARDINAL trial hearing was adjourned on account of the absence of the applicant ’s lawyer ( DATE ) .

On numerous occasions the applicant requested the trial court to release him . However , his requests were dismissed for the same reasons which had served to justify his continued detention .

On DATE the ORG gave judgment . It convicted the applicant as charged and sentenced him to CARDINAL half years’ imprisonment . It also prolonged the applicant ’s detention on remand until DATE . The applicant appealed against the first - instance judgment .

On DATE the ORG upheld the judgment of ORG . The applicant lodged a cassation appeal against the judgment of ORG .

On DATE ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal due to its manifestly ill - founded character .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , surety by a responsible person ( poręczenie osoby godnej zaufania ) , surety by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of preventive measures . That provision reads :

“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL § CARDINAL of LAW , in the version applicable at the relevant time , provides :

“ The court shall inform the detainee ’s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . In imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed . In addition , new paragraph CARDINAL was added . It provides :

“ A decision of ORG taken pursuant to paragraph CARDINAL may be appealed against to ORG sitting in a panel of CARDINAL judges . ”


CASE OF PEDERSEN AND BAADSGAARD v. DENMARK

No violation of Art. 6-1;No violation of Art. 10

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicants were CARDINAL television journalists . At the relevant time they were employed by CARDINAL of the CARDINAL national television stations in GPE , ORG . They produced CARDINAL television programmes which were broadcast at TIME on DATE and CARDINAL DATE respectively . It was estimated that PERCENT of all viewers above DATE saw the programmes . The programmes , described as documentaries , were called “ Convicted of Murder ” ( GPE for mord ) and “ The Blind Eye of the Police ” ( NORP blinde øje ) respectively and dealt with a murder trial in which on CARDINAL DATE ORG of GPE ( Vestre Landsret ) had convicted a person , hereafter called X , of murdering his wife on DATE TIME was sentenced to DATE imprisonment . On appeal , ORG ( Højesteret ) upheld the sentence in DATE . On DATE , following his release on probation , PERSON requested ORG ( PERSON ) to reopen the case .

The applicants had started to prepare the programmes in DATE , establishing contact with witnesses through advertising in the local paper and via police reports .

Both programmes began with a statement of the premise on which they had been produced :

“ In this programme we shall provide evidence by way of a series of specific examples that there was no legal basis for ORG conviction and that , by imposing its sentence , ORG disregarded CARDINAL of the fundamental tenets of the law in GPE , namely that the accused should be given the benefit of the doubt .

We shall show that a scandalously bad police investigation , in which the question of guilt was prejudged right from the start , and which ignored significant witnesses and concentrated on dubious ones , led to X being sentenced to CARDINAL years’ imprisonment for the murder of his wife .

This programme will show that X could not have committed the crime of which he was convicted on CARDINAL DATE ” .

At an early stage in the first programme , “ Convicted of Murder ” , the following comment was made :

“ In the case against X , the police investigation involved about CARDINAL people . CARDINAL pages of reports were written DATE and CARDINAL witnesses appeared before ORG .

We will try to establish what actually happened on DATE of the murder , CARDINAL DATE . We shall critically review the police investigations and evaluate the ORG statements regarding the time of PERSON ’s wife ’s disappearance . ”

When preparing this first programme , the applicants had invited the police of GPE district , who had been responsible for the investigation of the murder case , to take part . Having corresponded with the applicants on this subject for some time , the chief of police informed them by a letter of DATE that the police could not participate in the programme as certain conditions for granting the interview , inter alia , that the questions be sent in writing in advance , had not been met .

Following the broadcast of the first programme on DATE , the applicants were charged with defamation on the ground that they had unlawfully connected the friend of X ’s wife ( “ the schoolteacher ” ) with the death of CARDINAL women referred to , one being PERSON ’s wife . The defamation case ended on DATE before ORG with a settlement according to which the applicants were to pay the schoolteacher CARDINAL NORP kroner ( ORG ) , apologise unreservedly , and give an undertaking never to broadcast the programme again .

The applicants alleged that the chief superintendent , in a telephone conversation with PERSON at some unknown time before the broadcast of the second programme , had declined to participate in the programme .

In the introduction to the second programme , the following comment was made :

“ It was the police of GPE district who were responsible at that time for the investigations which led to X ’s conviction . Did the police assume right from the start that X was the killer , and did they therefore fail to investigate all the leads in the case , as required by the law ?

We have investigated whether there is substance in GPE ’s serious allegations against the police of GPE district . ”

A little later in the programme , the second applicant interviewed a taxi driver , who explained that she had been questioned by CARDINAL police officers DATE after the disappearance of PERSON ’s wife , and that she had mentioned on that occasion CARDINAL observations she had made on DATE : she had seen a ORG taxi ( which was later shown to have no relevance to the murder ) , and before that she had seen X and his son at TIME . She had driven behind them for QUANTITY . The reason she could remember the date and time so clearly was because she had to attend her grandmother ’s funeral on DATE at TIME

The following comment was then made :

“ Commentator : So in DATE , shortly after ORG wife disappeared and PERSON was in prison , the GPE police were in possession of the taxi driver ’s statement , in which she reported that shortly after TIME that DATE she had driven behind X and his son for QUANTITY ... So X and his son were in GPE [ residential area ] twice , and the police knew it in DATE . ”

The interview went on :

“ Second applicant : What did the police officers say about the information you provided ?

Taxi driver : Well , CARDINAL of them said that it could n’t be true that PERSON ’s son was in the car , but in fact I am a PERCENT certain it was him , as I also know the son because I have driven him to the day - care centre .

Second applicant : Why did he say that to you ?

Taxi driver : Well , he just said that it could n’t be true that the son was there .

Second applicant : That it could n’t be true that you saw what you saw .

Taxi driver : No , that is , he did n’t say that I had n’t seen X , it just could n’t be true that the son was with him .

Second applicant : These were the CARDINAL police officers who questioned the taxi driver in DATE and who wrote the police report .

We showed the taxi driver her statement of DATE , which she had never seen before .

Taxi driver : It ’s missing , the bit DATE there was only ... about the ORG , there was nothing about the rest , unless you have another one .

Second applicant : There is only this one .

Taxi driver : But it obviously can not have been important .

Second applicant : What do you think about that ?

Taxi driver : Well it says , I do n’t know , well I think when you make a statement , it should be written down in any case , otherwise I ca n’t see any point in it , and especially not in a murder case .

Commentator : So the taxi driver claims that in DATE she had already told CARDINAL police officers that she had seen X and his son . Not a word of this is mentioned in this report .

Second applicant : Why are you so sure that you told the police this at the time , which was DATE ?

Taxi driver : Well I am PERCENT sure of it and also , my husband sat beside me in the living room as a witness so ... , so that is why I am a PERCENT certain that I told them .

Second applicant : And he was there throughout the entire interview ?

Taxi driver : Yes , he was .

Second applicant : Not just part of the interview ?

Taxi driver : No , he was there all the time .

Commentator : It was not until DATE , DATE , that the taxi driver heard of the matter again , shortly after the ‘ Convicted of Murder’ programme had been shown ; even though the taxi driver ’s report had been filed as a so - called CARDINAL report , she was phoned by a chief inspector of ORG [ Rejseholdet ] who had been asked by the public prosecutor to do a few more interviews .

Taxi driver : The chief inspector called me and asked whether I knew if any of my colleagues knew anything they had not reported , or whether I had happened to think of something , and I then told him on the phone what I said the first time about the ORG and that I had driven behind X and his son up to FAC , and then he said that if he found anything out , or if ... or if there was anything else , then ... then he would get in touch with me again , which he did n’t , not until a while afterwards , when he called me and asked whether I would come for another interview .

Second applicant : When you told the chief inspector in your telephone call that you followed X , and that his son was in the car , what did he say about that ?

Taxi driver : Well , he did n’t say anything .

Second applicant : He did not say that you had never reported this ?

Taxi driver : No , he did n’t . ”

The second applicant then conducted a short interview with X ’s new counsel :

“ Second applicant : Have you any comment on the explanation the taxi driver has given now ?

X ’s new counsel : I have no comment to make at this time .

Second applicant : Why not ?

X ’s new counsel : I have agreed with the public prosecutor , and the President of ORG , that statements to the press in this matter will in future only be issued by ORG .

Commentator : Even though X ’s new counsel does not wish to speak about the case , we know from other sources that it was he who , in DATE , asked for the taxi driver to be interviewed again . So in DATE she was interviewed at GPE police station in the presence of the chief superintendent , which is clearly at odds with what the public prosecutor previously stated in public , namely that the GPE police would not get the opportunity to be involved in the new inquiries . ”

The interview with the taxi driver continued :

“ Second applicant : And what happened at the interview ?

Taxi driver : What happened was that I was shown into the office of the chief inspector of ORG and the chief superintendent was there too .

Second applicant : Was any explanation given about why he was present ?

Taxi driver : No .

Second applicant : So what did you say in this interview ?

Taxi driver : I gave the same explanations as I had done the first time when I was interviewed at home .

Second applicant : DATE before , that is .

Taxi driver : Yes .

Second applicant : And that was ?

Taxi driver : Well , that I had driven behind X and his son up to Ryets Street .

Second applicant : What did they say about that ?

Taxi driver : They did n’t say anything .

Second applicant : The report which was made in DATE , did you see it ?

Taxi driver : No .

Second applicant : Was it there in the room ?

Taxi driver : There was a report there when I was being interviewed , but I was n’t allowed to see it .

Second applicant : Did you expressly ask whether you could see the old report ?

Taxi driver : I asked whether I could see it but the chief inspector said I could n’t ... ”

After the interview with the taxi driver the commentator said :

“ Now we are left with all the questions : why did the vital part of the taxi driver ’s explanation disappear and who , in the police or public prosecutor ’s office , should bear the responsibility for this ?

Was it the CARDINAL police officers who failed to write a report about it ?

Hardly , sources in the police tell us they would not dare .

Was it [ the named chief superintendent ] who decided that the report should not be included in the case file ? Or did he and the chief inspector of ORG conceal the witness ’s statement from the defence , the judges and the jury ? ... ”

Pictures of the QUANTITY police officers , the named chief superintendent and the chief inspector of ORG , were shown on the screen simultaneously and parallel with the above questions . The questions went on :

“ Why did the chief inspector phone the taxi driver shortly after the television programme ‘ Convicted of Murder’ ? After all , the police had taken the view that the taxi driver had no importance as a witness and had filed her statement among the CARDINAL reports .

Why did the chief inspector not call her in for an interview when she repeated her original explanation on the telephone ?

Why was the taxi driver interviewed at the GPE police station in the presence of the chief superintendent , which was completely at odds with the public prosecutor ’s public statement ?

On DATE [ a named ] Chief Constable stated to [ a regional DATE ] : ‘ All the information connected to the case has been submitted to the defendants , the prosecution and the judges.’ Did the Chief Constable know about the taxi driver ’s statement , when he made this statement ? Did ORG know already in DATE that there was a statement from a witness confirming that X had been in ORG twice , and that X ’s son had been with him both times ? Neither of them have agreed to make any statement at all about the case . ”

In the meantime , on DATE , before the broadcast of the second programme , the taxi driver had again been interviewed by the police , at the request of ORG ’s new counsel . She stated that on DATE she had attended her grandmother ’s funeral at TIME and that on her way there , CARDINAL or TIME , she had driven behind X and his son . She had arrived at the funeral just before TIME She also explained that she had told the police about this when first interviewed in DATE . Later on DATE the police carried out a check which revealed that the funeral of the taxi driver ’s grandmother had indeed taken place on DATE , but at TIME

Subsequently , the police held CARDINAL interviews with the taxi driver , during which she changed her explanation , in particular as follows .

On DATE she maintained having seen X shortly after TIME but agreed that the funeral had taken place at TIME On her way there she realised she had forgotten a wreath . She had had to return home and had consequently arrived at the funeral just before TIME

On DATE she stated that she was not sure about the date or the time she had seen X and his son . Moreover , she was uncertain whether , shortly after the murder , she had told the police about having seen X. She also explained that , during the shooting of her interview with Mr Baadsgaard on DATE , he had suggested that she say something like “ where is the other report ? ” when he showed her the DATE report .

On DATE she initially stated that she had not seen X and his son on DATE . She had never before connected this episode to the funeral . She also admitted having made up the story about the forgotten wreath , but had wanted “ things to fit ” . Later during the interview she maintained that she had seen X and his son on DATE , but at TIME

On DATE the chief superintendent reported the applicants and the television station to the police for defamation . It appears , however , that the prosecution ’s decision as to whether or not to charge the applicants was adjourned pending the decision whether to reopen X ’s case .

This was decided in the affirmative by ORG on DATE after CARDINAL hearings and the examination of CARDINAL witnesses , including the taxi driver . CARDINAL judges ( out of CARDINAL ) in GPE found that new testimonial evidence had been produced on which X might have been acquitted , had it been available at the trial . CARDINAL other judges found that no new testimonial evidence had been produced on which X might have been acquitted , had it been available at the trial . The fifth judge agreed with the latter , but found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been judged correctly . Accordingly , the court granted a retrial .

In the meantime , following the television programmes , an inquiry had commenced into the police investigation of ORG ’s case . The inquiry resulted in a report of CARDINAL DATE by ORG , according to which the police in GPE had not complied with section CARDINAL(CARDINAL ) of ORG ( Retsplejeloven ) . This provision , introduced on DATE , provides that a witness must be given the opportunity to read through his or her statement . The non - compliance had not been limited to the investigation in GPE ’s case . Instead , allegedly in order to minimise errors or misunderstandings , the police in GPE usually interviewed witnesses in the presence of QUANTITY police officers and made sure that crucial witnesses repeated their statements before a court as soon as possible . In this connection , ORG noted that ORG , before which ORG had been convicted in DATE , had not made any comments on the failure to comply with section CARDINAL ) of ORG with regard to the witnesses who were heard before it in DATE . Finally , ORG noted that the GPE district police were apparently not the only district police failing to comply with the said provision . ORG considered it unjustified to maintain that the taxi driver , when interviewed in DATE , had stated that she had seen X on DATE of the murder . During the inquiry this had been contradicted by the CARDINAL police officers who had interviewed her in DATE . Moreover , the inquiry did not indicate that anyone within the GPE police had suppressed any evidence in GPE ’s case , or in any other criminal case for that matter .

Consequently , on DATE , ORG PERSON ) stated in a letter to ORG that it was unfortunate and open to criticism that the police in GPE had not implemented the above provision as part of their usual routine , and informed the Ministry that he had agreed with ORG that he would produce a wider set of guidelines concerning the questioning of witnesses , which could be integrated into ORG educational material .

X ’s retrial ended with his acquittal in a judgment of CARDINAL DATE by ORG , sitting with a jury .

A lawyer who represented the applicants in another case had become aware of a letter of CARDINAL DATE from ORG to ORG ( Retsudvalget ) of the NORP parliament mentioning that , subsequent to the broadcast of the programme “ ORG of the Police ” , the applicants had been reported to the police by CARDINAL police officers from GPE . By a letter of DATE , the lawyer requested that the Prosecutor General state whether the applicants had been charged , and if so with what offence . By a letter of CARDINAL DATE , he was told that no charge had been brought against the applicants .

On DATE the Chief Constable in GPE informed the applicants that they were charged with defaming the chief superintendent . On DATE the applicants were questioned by the police in GPE .

A request of CARDINAL DATE by the prosecution to seize the ORG research material was examined at a hearing in ORG ( Retten i Gladsaxe ) on DATE , during which the ORG counsel , claiming that the case concerned a political offence , requested that a jury in ORG – instead of ORG – try the case . Both requests were refused by ORG on DATE . In DATE the prosecution appealed against the decision on seizure and the applicants appealed against the decision on venue . At the request of CARDINAL of the ORG counsel , an oral hearing was scheduled to take place in ORG of Eastern Denmark ( PERSON ) on DATE . However , on DATE counsel challenged one of the judges in ORG , alleging disqualification , and requested an oral hearing on the issue . ORG decided on DATE to refuse an oral hearing and on DATE it decided that the judge in question was not disqualified . It appears that counsel requested leave to appeal against this decision to ORG ( Højesteret ) , but to no avail . As to the appeal against non - seizure and the question of venue , hearings were held in the High Court on DATE and DATE , and by a decision of CARDINAL DATE ORG upheld ORG decisions . The applicants’ request for leave to appeal to ORG was refused on DATE .

On DATE the prosecution submitted an indictment to ORG . A preliminary hearing was held on DATE during which it was agreed that the case would be tried over DATE in DATE . However , as counsel for CARDINAL of the parties was ill , the final hearings were rescheduled to take place on CARDINAL , DATE , DATE and DATE and CARDINAL DATE .

On DATE ORG delivered a QUANTITY - page judgment , finding that the questions put in the television programme concerning the named chief superintendent amounted to defamatory allegations , which should be declared null and void . However , the court did not impose any sentence on the applicants as it found that they had had reason to believe that the allegations were true . The court also ruled in favour of the applicants regarding a compensation claim by the widow of the named chief superintendent , who had died before the trial . The judgment was appealed against by the applicants immediately , and by the prosecution on DATE .

On DATE the prosecutor sent a notice of appeal to ORG , and on DATE he invited counsel for the applicants and the attorney for the widow of the chief superintendent to a meeting concerning the proceedings . Counsel for CARDINAL of the parties stated that he was unable to attend before DATE , and accordingly the meeting was held on DATE . ORG received TIME of the meeting , from which it appeared that counsel for CARDINAL of the parties was unable to attend the trial before DATE , and that he preferred the hearings to take place in DATE . On DATE ORG scheduled the hearings for CARDINAL , DATE and DATE and DATE .

On DATE the ORG gave judgment convicting the applicants of tarnishing the honour of the chief superintendent by making and spreading allegations of an act likely to disparage him in the eyes of his fellow citizens , under LAW . The allegations were declared null and void . The applicants were each sentenced to DATE - fines of DKK CARDINAL ( or CARDINAL days’ imprisonment in default ) and ordered to pay compensation of DKK CARDINAL to the estate of the deceased chief superintendent .

On DATE , DATE and DATE the applicants sought leave from the Leave - to - Appeal Board ( Procesbevillingsnævnet ) to appeal to ORG . Before deciding , the ORG requested an opinion from the prosecuting authorities , namely the Chief of ORG , ORG and ORG . On DATE they submitted a joint opinion opposing leave to appeal . However , in the meantime , it appears that a lawyer representing the television station ORG had contacted ORG , proposing that the public prosecution assist in bringing the case before ORG as , according to the television station , ORG judgment was incompatible with LAW ( PERSON ) . Consequently , the public prosecutors initiated a new round of consultation on this question , and their joint opinion was forwarded to ORG . On DATE , having heard the applicants’ counsel on the prosecution ’s submissions , ORG granted the applicants leave to appeal to ORG .

The Prosecutor General submitted a notice of appeal and sent the case file to ORG on DATE and DATE respectively .

As counsel for the applicants wanted to engage yet another counsel , on DATE they asked ORG whether costs in this respect would be considered legal costs . Moreover , they stated that their pleadings could not be submitted until DATE . On DATE ORG decided on the question of costs , and on DATE scheduled the hearing for CARDINAL and DATE .

By a judgment of DATE , ORG upheld ORG judgment , but increased the compensation payable to the estate to DKK CARDINAL . The majority of judges ( CARDINAL out of CARDINAL ) held :

“ In the programme ‘ The Blind Eye of the Police’ , [ the applicants ] not only repeated a statement by the taxi driver that she had already explained to the police during their inquiries in DATE that shortly after TIME on DATE she had driven behind X for QUANTITY , but also , in accordance with the common premise for the programmes ‘ Convicted of Murder’ and ‘ The Blind Eye of the Police’ , took a stand on the truth of the taxi driver ’s statement and presented matters in such a way that viewers , even before the final sequence of questions , were given the impression that it was a fact that the taxi driver had given the explanation as she alleged she had done in DATE and that the police were therefore in possession of this statement in DATE . This impression was strengthened by the first of the concluding questions : ‘ ... why did the vital part of the taxi driver ’s explanation disappear and who , in the police or public prosecutor ’s office , should bear the responsibility for this?’ . In connection with the scenes about the QUANTITY police officers [ the applicants ] include CARDINAL questions in the commentator ’s narrative , to which the indictment relates ; irrespective of the fact that they were phrased as questions , viewers undoubtedly received a clear impression that a report had been made about the taxi driver ’s statement that she had seen X at the relevant time on DATE ; that this report had subsequently been suppressed ; and that such suppression had been decided upon either by the named chief superintendent alone or by him and the chief inspector of ORG jointly . The subsequent questions in the commentator ’s narrative do not weaken this impression , and neither does the question whether the Chief Constable or the public prosecutor were aware of the taxi driver ’s statement . On this basis we find that in the programme ‘ ORG of the Police’ [ the applicants ] made allegations against the named superintendent which were intended to discredit him in the eyes of his peers , within the meaning of LAW [ PERSON ] . We find further that it must have been clear to [ the applicants ] that they were , by way of their presentation , making such allegations .

[ The applicants ] have not endeavoured to provide any justification but have claimed that there is no cause of action by virtue of LAW – [ which protects ] a party who in good faith justifiably makes an allegation which is clearly in the general public interest or in the interest of other parties ...

As laid down in PERSON GPE ( judgment of DATE ) , there is a very extensive right to public criticism of the police . As in that decision there is , however , a difference between passing on and making allegations , just as there is a difference between criticism being directed at the police as such and at individual named officers in the police force . Even though being in the public eye is a natural part of a police officer ’s duties , consideration should also be given to his good name and reputation .

As stated , [ the applicants ] did not limit themselves in the programme to referring to the taxi driver ’s statement or to making value judgments on this basis about the quality of the police investigations and the chief superintendent ’s leadership thereof . Nor did [ the applicants ] limit themselves to making allegations against the police as such for having suppressed the taxi driver ’s explanation ; they alleged that the named chief superintendent had committed a criminal offence by suppressing a vital fact .

When [ the applicants ] were producing the programme , they knew that an application had been made to ORG for the case against X to be reopened and that , as part of ORG proceedings in dealing with the said application , the taxi driver had been interviewed by the police on DATE at the request of ORG ’s defence as part of the proceedings to reopen the case . In consequence of the ongoing proceedings for reopening the case , [ the applicants ] could not count on the chief superintendent and the QUANTITY police officers who had interviewed the taxi driver in DATE being prepared to participate in the programme and hence possibly anticipate proceedings in ORG . Making the allegations can not accordingly be justified by lack of police participation in the programme .

[ The applicants’ ] intention , in the programme , of undertaking a critical assessment of the police investigation was legitimate in relation to the role of the media as public watchdog , but this does not apply to every allegation . [ The applicants ] had no basis for making such a serious allegation against a named police officer , and [ the applicants’ ] opportunities for achieving the aims of the programme in no way required the questions upon which the charges are based to be included .

On this basis , and even though the exemptions provided in LAW must be narrowly interpreted and LAW protects not only the content of utterances but also the manner in which they are made , we agree that the allegation made was not caught by the exemption in LAW . Indeed , as a result of the seriousness of the allegation , we agree that there is no basis for the punishment to be remitted in accordance with LAW . We agree further that there are no grounds for a remittal of penalty under LAW .

We also concur with the findings on defamation .

We agree with ORG that the fact that the allegation was made in a programme on the national television station ORG and hence could be expected to get widespread publicity – as indeed it did – must be regarded as an aggravating factor for the purposes of LAW . Considering that it is DATE since the programme was shown , we do not find , however , that there are sufficient grounds for increasing the sentence .

For the reasons given by ORG , we find that [ the applicants ] must pay damages to the heirs of the chief superintendent . In this connection , it should be noted that it can not be regarded as crucial that the nature of the claim for damages was not stated in the writ of CARDINAL DATE , since the chief superintendent ’s claim for financial compensation could not relate to anything other than damages . Due to the seriousness of the allegation and the manner of its presentation , we find that the compensation should be increased to DKK CARDINAL . ”

The minority of CARDINAL judges who argued for the applicants’ acquittal held , inter alia :

“ We agree that the statements covered by the indictment , irrespective of their having been phrased as questions , have to be regarded as indictable under LAW and that [ the applicants ] had the requisite intention .

As stated by the majority , the question of culpability must be decided in accordance with LAW , taken together with LAW , interpreted in the light of LAW and ORG restrictive interpretation of the exemptions under LAW .

In reaching a decision , consideration must be given to the basis on which [ the applicants ] made their allegations , their formulation and the circumstances under which they were made , as well as [ the applicants’ ] intentions in the programme .

... We find that [ the applicants ] had cause to suppose that the taxi driver ’s statement that she had seen X on DATE shortly past TIME was true . We further find ... that [ the applicants ] had reason to assume that the taxi driver , when interviewed in DATE , had told the CARDINAL police officers that she had seen X ... We accordingly attach weight to the fact that it is natural for such an observation to be reported to the police ; that it is also apparent from her explanation in the police report of DATE that she had already told the police about her observations in DATE ; and that her explanation about the reaction of the police to her information that X ’s son had been in the car strengthened the likelihood of her having reported the observation at the interview in DATE .

... It is apparent from the television programme that [ the applicants ] were aware that the Frederikshavn police had not at that time complied with the requirement to offer a person interviewed an opportunity to see the records of his or her statements . [ The applicants ] may accordingly have had some grounds for supposing that the DATE report did not contain the taxi driver ’s full statement or that there was another report thereon ...

We consider that [ the applicants ] , in putting the questions covered by the indictment , did not exceed the limits of the freedom of expression which , in a case such as the present one , which relates to serious matters of considerable public interest , should be available to the media . We also attach some weight to the fact that the programme was instrumental in ORG decision to hear witnesses and we attach some weight to X ’s subsequent acquittal .

Overall , we accordingly find that [ the allegation ] is not punishable by virtue of LAW ...

[ We agree that ] the allegation should be declared null and void since its veracity has not been proved ... ”

The relevant provisions of LAW applicable at the time read as follows :

“ If a person in the exercise of a public office or function has been guilty of false accusation , an offence relating to evidence ... or breach of trust , the penalty prescribed for the particular offence may be increased by not more than one - half . ”

“ CARDINAL . Any person who gives false evidence before a public authority with the intention that an innocent person shall thereby be charged with , convicted of , or subject to the legal consequence of , a punishable act shall be liable to mitigated detention [ hæfte ] or to imprisonment for a term not exceeding six years .

Similar punishment shall apply to any person who destroys , distorts or removes evidence or furnishes false evidence with the intention that any person shall thereby be charged with , or convicted of , a criminal act ... ”

“ CARDINAL . Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to mitigated detention .

When imposing sentence it shall be considered an aggravating circumstance if the insult was made in printed documents or in any other way likely to give it wider circulation , or in such places or at such times as greatly to aggravate the offensive character of the act . ”

“ If an allegation has been maliciously made or disseminated , or if the author has no reasonable ground to regard it as true , he shall be guilty of defamation and liable to mitigated detention or to imprisonment for a term not exceeding DATE . If the allegation has not been made or disseminated publicly , the punishment may , in mitigating circumstances , be reduced to a fine . ”

“ CARDINAL . An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others .

NORP The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true . ”

“ The penalty prescribed in LAW may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation . ”

Section CARDINAL of ORG read as follows :

“ ( CARDINAL ) The relevant parts of the given testimonies must be included in the reports and particularly important parts of the testimonies should as far as possible be reported using the person ’s own words .

( CARDINAL ) NORP The person interviewed shall be given the opportunity to acquaint himself with the report . Any corrections or supplementary information shall be included in the report . The person interviewed shall be informed that he is not obliged to sign the report .

( CARDINAL ) Audio recordings of the interview may only take place after informing the person interviewed . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .