No violation of Art. 6-1+6-3-d;No violation of Art. 10

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant is a journalist by profession . At the relevant time she was employed as a reporter at TIME , one of the leading national DATE newspapers . She continues to work there at present .

Following a serious banking crisis in DATE , during which a number of banks were sunk into insolvency by , inter alia , non - performing and unsecured loans extended to corporate and individual clients , the NORP legislature enacted a comprehensive package of bank reform legislation ( see ORG AD v. GPE , no . QUANTITY , § CARDINAL , DATE ) . Part of that package was ORG ( “ ORG за информация за необслужвани кредити ” ) , which stipulated that ORG should compile a list of all bank borrowers with loans that had been due for DATE , send this list to ORG , ORG , the tax and customs authorities , and ORG , and publish it in a special bulletin . The persons on this list were colloquially referred to as “ credit millionaires ” .

On DATE the head of the banking supervision department of ORG presented the list to the chairman of ORG .

DATE Mr PERSON was a Member of ORG elected on the ticket of the political party ORG . He was deputy chairman of ORG and a member of ORG of ORG . In DATE he became involved with the newly formed coalition ORG , which won the parliamentary elections on DATE . During DATE Mr PERSON was a member of and shareholder in a number of commercial companies . DATE his name was mentioned in at least twentyfour reports in national newspapers .

On DATE ORG , a leading national DATE newspaper , published an article under the headline ‘ Credit millionaires disclosed’ and the caption ‘ Several incumbent and former members of ORG appear on the list’ . In the article the newspaper reported on the handover of the list of “ credit millionaires ” to the chairman of ORG DATE and mentioned , inter alia , that several companies connected with the name of Mr PERSON were on the list . According to the article , the company Maxcom Holding owed MONEY old NORP levs ( ORG ) to CARDINAL bank , the company ORG Maxcom owed ORG MONEY to another bank , and the company Maxcom OOD was indebted in an amount of ORG MONEY .

On DATE Mr PERSON issued civil libel proceedings against the publisher of ORG . He said that the allegation made in the article that he was a “ credit millionaire ” was not true . He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of ORG . He sought ORG CARDINAL in nonpecuniary damages .

In a judgment of CARDINAL DATE ORG dismissed the action . It held that Mr PERSON allegations had not been supported by any evidence and were therefore unsubstantiated . Neither party had attended either of the hearings in the case . Mr PERSON had not sought leave to adduce any evidence . He had therefore not proven his claim that he had suffered any damage on account of the impugned article . Apparently Mr PERSON did not appeal and the judgment entered into force on DATE .

On DATE the parliamentary group of ORG held a closeddoors meeting in ORG in order to discuss , inter alia , the candidates for the position of deputy Minister of Finance in charge of customs . For this reason the applicant , who at that time worked as a parliamentary reporter , went , together with other journalists , to the ORG lobby . There they met Members of ORG , who told them that Mr PERSON was being considered for the abovementioned position . CARDINAL of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr PERSON name featured on the list of “ credit millionaires ” . At that point the applicant called the editor of TIME and said that she would prepare an article on the topic . She also telephoned Mr N. , the press officer of the customs administration , asking him whether Mr PERSON name was on the list of “ credit millionaires ” . Mr N. replied that as far as he knew that was so , and referred the applicant to the Full list of credit millionaires , published by the ORG publishing house in DATE . It was stated in the preface of that publication that CARDINAL companies linked with Mr M. D. – FBK Maxcom and Maxcom OOD – were on that list . The applicant checked in an electronic law database and found that Mr PERSON had been a member ( first directly , and after DATE through another company ) of the company Vitaplant OOD , which was also among the debtor companies on the list . After unsuccessfully trying to contact Mr PERSON by telephone , she wrote an article about the story .

According to the applicant , in the meantime other journalists from TIME had contacted various institutions which could have had information on the matter ( ORG , ORG , ORG , ORG , ORG ) and all of them had confirmed that Mr PERSON featured on the list of “ credit millionaires ” .

The article , which appeared on page CARDINAL of DATE issue of TIME under the headline “ ORG under Concession ? ” and the applicant ’s byline , was worded as follows :

“ The King ’s men were intensely discussing whether to hire a Western company to run the customs administration , Members of ORG say . The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration . The proposal that Mr PERSON is tapped for the position has not yet been approved by the Prime Minister . PERSON was concerned about the fact that [ Mr M. NORP ] ’s name is on the list of credit millionaires , confided sources close to him . In the official document dated DATE and signed by the head of ORG [ department of ORG ] , PERSON , [ Mr PERSON ] appears as a debtor . CARDINAL of his companies – Maxcom Holding , FBK Maxcom and Maxcom OOD – , had debts totalling MONEY . The uncertainties about [ Mr M. NORP ] have brought the name of [ Mr PERSON ] on to the agenda . However , the idea was for him to have operational control over customs , while the concession is awarded to the Western company . ”

The article was accompanied by photographs of Mr PERSON and Mr E. NORP with their names in the captions .

DATE the applicant got in touch with Mr PERSON and was told that the statements in her article were not true .

After the first printed copies of the newspaper were circulated , PERSON PERSON called CARDINAL Hours’ editor and said that he was not a shareholder in ORG , ORG , or Maxcom OOD . The editor then decided to amend the article in the subsequent printed copies of the newspaper . The new version , which featured solely the picture of Mr PERSON , but not that of Mr PERSON , read as follows :

“ The King ’s men were discussing whether to hire a Western company to run the customs administration , Members of ORG say . The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration . The proposal that Mr PERSON is tapped for the position has not yet been approved by the Prime Minister .

According to insiders , PERSON received reports that [ Mr M. D. ] is on the list of credit millionaires . In the official document dated DATE and signed by the head of ORG [ department of ORG ] , PERSON , [ Mr PERSON ] appears as a debtor .

Mr PERSON categorically denied this . He said ‘ I am not a debtor , but a ORG .

According to former Members of ORG , the allegations that he was a credit millionaire were being spread by people who wanted to smear his name . Illwishers used the similarity between the names of [ Mr PERSON ’s companies and the names of those companies featuring on the list of credit millionaires . This was done to foil his candidacy for the position of deputy Minister of Finance . In DATE the name of [ Mr E. D. ] has been brought on to the agenda . However , the idea was for him to have operational control over customs , while the concession is awarded to the Western company . ”

The first version of the article was featured in CARDINAL copies of the newspaper , CARDINAL of which were sold . The second version was featured in CARDINAL copies , CARDINAL of which were sold .

DATE , on DATE , TIME ran an additional article including the response from Mr PERSON The article , which appeared on page CARDINAL , was under the caption ‘ You are wrong’ and its headline was ‘ [ M. D. ] : I am not a credit millionaire!’ . It read as follows :

“ In an article on page CARDINAL of issue CARDINAL of DATE , under the headline ‘ Foreign Company To Run ORG under Concession?’ , [ the applicant ] links my name to companies which feature on the list of credit millionaires .

This statement does not correspond to the truth .

I reiterate that I have never been a shareholder , member or manager in the companies Maxcom Holding , FBK Maxcom , or Maxcom OOD , nor can I be in any other way linked with debtor companies . Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation .

To my displeasure I notice that TIME , a newspaper which I respect , has joined in the foul attack .

In my opinion , the publication of unauthentic , unverified and incorrect information does no honour to your newspaper and offends its readers . ”

Alongside the article there was a photograph of Mr PERSON with his name in the caption .

Shortly after these events Mr NORP announced that he had withdrawn his candidacy for the post of deputy Minister of Finance .

On DATE Mr M.D. lodged a criminal complaint against the applicant with ORG . He alleged that the statements made in the article were not true . In particular , he had never been a shareholder , member , or manager of the companies mentioned in the article – Maxcom Holding , ORG Maxcom or Maxcom OOD – , nor did he appear as an individual on the list of “ credit millionaires ” . In his view , by writing the article containing the untrue statements the applicant had committed libel , contrary to ORG CARDINAL § CARDINAL and CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW of DATE ( see paragraphs CARDINAL and CARDINAL below ) . He further alleged that he had suffered substantial nonpecuniary damage as a result of the applicant ’s act , and sought compensation in the amount of CARDINAL new NORP levs ( ORG ) . He declared that he would donate any award made by the court to a church .

On DATE the judgerapporteur at FAC sent a copy of the criminal complaint to the applicant , invited her to file a reply , and set the case down for trial .

NORP In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven . The article did not consist of her own statements ; she had simply relayed information coming from Members of ORG . This information had been verified through all available sources . The applicant had been certain that Mr PERSON had indeed been a “ credit millionaire ” , which was the actual vilifying circumstance , not the mere fact that he was involved in certain companies .

The trial took place on DATE , DATE , DATE , DATE and DATE . The ORG admitted in evidence a number of documents produced by the applicant and Mr PERSON , and questioned several witnesses , one of whom was PERSON , a journalist who had been in ORG on DATE ( see paragraph CARDINAL above ) . While initially giving leave to the applicant to adduce evidence relating to Mr M. D. ’s links with companies which had failed to repay bank loans , the court later revoked its order and refused to admit such evidence , holding that these matters could be elucidated through the evidence already gathered . The court also gave leave to the applicant to call one of the Members of ORG whom she had talked to on DATE . She tried to secure his presence , but failed to do so . She accordingly left it to the discretion of the court to subpoena him , but refused to name him . Her counsel said that even though the MPs who had spoken to the applicant had been named in PERSON testimony , that did not allow the unequivocal identification of this witness and hence precluded a request to summon him . The court held that , failing clear identification of the witness , it was impossible to subpoena him . It added that the defence had had ample opportunity to secure his presence , but had failed to do so .

In a judgment of DATE the ORG found the applicant guilty of having divulged a vilifying fact about another person in a publication , contrary to LAW and LAW ) and QUANTITY of LAW of DATE ( see paragraphs CARDINAL and CARDINAL below ) . The court applied LAW ( see paragraph DATE below ) and replaced the applicant ’s criminal liability with an administrative fine of BGN CARDINAL . The court further ordered the applicant to pay Mr M.D. BGN CARDINAL plus interest from DATE until settlement , as compensation for his injured reputation , and awarded him ORG CARDINAL in costs . The court described the facts set out in CARDINAL above , except the part concerning Mr M. NORP ’s indirect membership of ORG at the time when it had taken out bank loans which it had failed to repay , and held as follows :

“ ... The actus reus of the offence of defamation is characterised by the divulging of vilifying DATE and untrue – circumstances relating to a specific individual . The expression used by [ the applicant ] – ‘ credit DATE is derived from the Information About NonPerforming Credits Act [ of DATE ] , on the basis of whose section CARDINAL the administration of the [ ORG ] has published a list of all debtors , persons who have outstanding credits . Therefore the expression ‘ credit ORG has a negative connotation and presupposes intolerance and extremely negative public attitudes . These are people who have prospered financially due to credits from financial institutions which they have failed to repay . In this sense , from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest . The law bans these persons from holding certain official posts .

The above characterises the expression used by [ the applicant ] – ‘ credit millionaire’ – as vilifying and damaging to the public reputation of the person [ in respect of whom it is used ] and the esteem of his personality . The vilifying circumstance has been divulged through the press to a large number of readers . The fact that the first version of the article had a smaller circulation than the second , which also contained [ Mr PERSON ] rebuttal , is of no consequence , because the circulation of the printed material has no impact on the criminality of the act .

The act has been committed wilfully , the form of mens rea being recklessness . [ The applicant ] realised the criminality of her act and its injurious consequences , and accepted that they would occur . [ She ] pursued another aim , which is not unlawful –informing the newspaper ’s readers of the latest news about the candidates for the post of deputy Minister of Finance in the ORG cabinet – , but was aware that the information published was untrue and did not correspond to the actual facts . The court ’s findings in this respect are based on the fact that [ the applicant ] did not carry out a proper journalistic enquiry before publishing her story .

No regulations for conducting a journalistic enquiry were in existence at the time when the article was published . Accordingly , in his or her work each journalist had to abide by and comply with the settled customary rules in the branch , which are in line with Articles DATE to CARDINAL of the [ LAW of DATE see paragraph CARDINAL below ] , which contain requirements and restrictions in the exercise of the rights proclaimed thereby . In the instant case , it was established that [ the applicant ] had not carried out the required comprehensive and thorough journalistic enquiry , as required by the rules of investigative journalism , that is , to receive confirmation from CARDINAL independent sources .

The first of [ the applicant ] ’s sources was a Member of the majority in ORG , who conveyed the information relating to [ Mr PERSON ] off the record , citing no sources , that is , it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels . He should have therefore , according to best journalistic practice , been considered an unreliable source . This fact obliged [ the applicant ] to duly check the information she had received through other , public and reliable , sources and not trust completely what she had heard in ORG . The information received from [ Mr N. ] did not in fact constitute another dependable source of information . The latter relied on the publication of the ORG publishing house The Full List of Credit Millionaires , in whose preface [ Mr M. NORP ] had been identified as a debtor through CARDINAL of his companies – FBK Maxcom , Maxcom Holding and Maxcom OOD . [ The applicant ] was therefore under the obligation to check whether [ Mr PERSON ] indeed owned shares in these companies , because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic . This conclusion is reinforced by the fact that the publication in issue gave the names of the companies , not of their shareholders , for which reason the statement in its preface was not confirmed by its contents . However , [ the applicant ] did not take the requisite steps to verify the facts alleged by [ Mr N. ] and the publication ’s preface . She merely established , after a check in the ORG information system , that [ Mr PERSON ] was a shareholder in the company Vitaplant [ OOD ] , which also featured on the list of persons with outstanding credits . The company Vitaplant [ OOD ] was not , however , among the companies connected to [ Mr PERSON ’s name in the publication ’s preface , and that should have prompted [ the applicant ] to doublecheck her assumptions . However , [ the applicant ] assumed that the link uncovered by her was sufficient to corroborate the statement that [ Mr PERSON ] was a credit millionaire . She thus failed to comply with her duty of thoroughly verifying the information through reliable , independent sources . [ The applicant ] did not check whether the statement in the [ publication ’s ] preface that [ Mr PERSON ] was connected to CARDINAL debtor companies corresponded to the truth , which was mandatory . The fact that she works at a DATE newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries . She had access to information in the register of companies , which is public , in order to check the veracity of the information she had gathered . Not only did [ the applicant ] not do that , but in her article she relied on a document with which she had not been duly acquainted DATE the official list of borrowers compiled by the [ ORG ] . The statement in her article that the CARDINAL companies – Maxcom Holding , Maxcom OOD and ORG DATE were companies of [ Mr PERSON ] was not supported by due journalistic enquiry . Her source , [ Mr N. ] , relied on the publication of ORG , which in fact means that [ the applicant ] ’s information was solely based on the preface of the list , which was not enough , considering that this information had not been verified either .

The readers’ right to be informed of socalled ‘ hot ORG does not absolve the article ’s author from checking carefully the accuracy of her publication . The fact that [ the applicant ] did not take the necessary steps in this direction confirms the court ’s conclusion that her act was wilful . There must be a balance between the reader ’s right to information and the rights of the persons affected by journalistic materials . The one responsible for this balance is the author , who must abide by the rules of investigative journalism . It is beyond doubt that the time and means available to a journalist on a DATE newspaper for a proper enquiry concerning a current issue are greatly limited , but [ the applicant ] was bound to do what was possible to verify the information she had gathered . In the case at hand [ the applicant ] had enough time to consult the register of companies , so as to report on the rumours heard in the lobby of the ORG building and at the same time to present the actual facts . It is precisely [ the applicant ] ’s passivity in respect of this second element which makes her act criminal . The lack of a full enquiry into the facts , performed with due journalistic care , and the applicant ’s own statement that she did not carry out a full enquiry into Mr PERSON involvement in the companies mentioned in the article , allow [ the court to conclude ] that she was not confident that her allegations were true . On the contrary , the fact that [ the applicant ] is an experienced journalist , maintains contacts with colleagues of hers from other media , with whom she exchanges information concerning such news , allows [ the court to conclude ] that she knew that information about outstanding credits of [ Mr PERSON ] had been published before . She was therefore aware that the CARDINAL newspapers which had published similar articles had also published refutations , and had apologised to [ Mr PERSON ] for the untruthfulness of their allegations . [ The applicant ] did not do all she was professionally bound to do in respect of the specific enquiry , which points to intent . She allowed herself to rely on sources which she had not checked , but which made her article look persuasive and objective .

CONCERNING THE PENALTY :

In determining the type and quantum of punishment the court had regard to the following :

The court is of the view that all necessary prerequisites for replacing [ the applicant ] ’s criminal liability and imposing an administrative punishment on her are in place . The offence committed by her is punishable by a fine . [ The applicant ] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability ... For this reason , the court is of the view that [ the applicant ] should be exonerated of criminal liability and punished administratively by a fine .

In determining the amount of the fine the court had regard to [ the applicant ] ’s means , earned as a journalist , as well as to certain mitigating circumstances , such as a critical attitude to her act , cooperation in establishing the facts , [ and ] good character . All of these favour a lower fine , that is [ ORG ] CARDINAL .

The court contemplated the possibility ... of imposing an additional punishment , but accepted that this is not necessary as the fine is sufficient to reform and deter [ the applicant ] and the general public .

CONCERNING THE CIVIL CLAIM :

The existence of damage resulting from the offence under LAW of the [ LAW of DATE ] is an unrebuttable presumption and , in view of the court ’s finding that the applicant acted with mens rea , the only outstanding issue is the quantum of damage . It is beyond doubt that the publication authored by [ the applicant ] damaged [ Mr M.D. ] ’s reputation and public esteem . He should therefore be compensated for that damage . At the same time it has not been proved beyond doubt that the article has affected [ Mr PERSON ’s business relations with his partners , [ or ] has hindered his prospective career in the executive , that is , has prevented him from being appointed to a highranking position . [ His ] allegations in this respect remained a mere conjecture , lacking clear distinction between reality and possibility . All averments in a criminal complaint are subject to proof at trial , including the quantum of the damage . For this reason , the lack of evidence leads to the conclusion that [ Mr PERSON ’s claim for ORG is unproven . [ The claimant ] is not relieved of the burden of proving the exact quantum of the sustained damage , irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes .

The court ruled in equity , as required by [ the law ] and the established caselaw , accepting that [ the applicant ] should be ordered to pay [ Mr M. D. ] the amount of ORG CARDINAL as compensation for the nonpecuniary damage suffered as a result of the offence . [ The applicant ] is to pay interest on this amount at the legal rate from DATE until settlement . ... ”

On DATE the applicant appealed to ORG . She argued , inter alia , that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party . It had thus restricted her capacity to prove the veracity of her allegations against Mr PERSON The lower court had also erred in accepting that she had acted with mens rea , which was excluded on account of , in particular , the fact that there had been prior publications stating that Mr PERSON was a “ credit millionaire ” . The applicant finally stated that her conviction and sentence were contrary to , inter alia , LAW . A journalist had the right to impart information received from others acting in their official capacity , which is how it was received in this case . She was under no obligation to verify publicly disclosed information . She had received the information from a Member of ORG , immediately after a discussion within his parliamentary group on the matter , and had simply passed it on .

In a supplementary memorial of DATE the applicant further said that she had not committed the actus reus of defamation , as Mr PERSON was indeed a “ credit millionaire ” , which was the actual vilifying circumstance , not the fact that he had been involved in certain companies . This fact was further evidenced by the judgment dismissing his tort action against ORG . The evidence presented merely proved that he was not on the list of “ credit millionaires ” as a physical person . It was therefore still possible that he could have been one through participation in certain companies , as she had tried to prove . The lower court ’s findings in respect of , inter alia , Mr PERSON direct and indirect participation in the companies mentioned were likewise erroneous . The court had also incorrectly held that the applicant had acted recklessly . She personally , and also her colleagues , had made numerous checks through various sources , which had led them to believe , in good faith and in line with the rules of investigative journalism , that Mr PERSON was a “ credit millionaire ” . The alleged insufficiency of the verification could only indicate negligence , not intent . Finally , the fact that the impugned information had previously been made public excluded defamation .

The Sofia City Court held a hearing on DATE . It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr PERSON participation in Vitaplant OOD , refused certain other evidentiary requests by the applicant , and heard the parties’ arguments .

In a final judgment of CARDINAL DATE the ORG noted the facts set out in paragraphs PERSON above , including the part relating to Mr M. D. ’s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay , and upheld the applicant ’s conviction and sentence in the following terms :

“ ... The parties are not in dispute about the facts [ established by the court ] . There is also no dispute about the [ lower court ] ’s finding that the statement that a given person is a ‘ credit millionaire’ because companies owned by him appear on the [ ORG ] ’s list of debtors with ‘ bad PERSON is objectively vilifying for him or her . [ The applicant ’s ] defence raises legal arguments , which outline CARDINAL disputed questions . The first is whether there is defamation where the facts set out in the publication are untrue , but the conclusion made on their basis is true on other grounds . The defence argues that [ Mr PERSON ] is in fact a ‘ credit millionaire’ , not on account of the companies cited in the publication , but because of [ his involvement in ] another company – Vitaplant OOD . The second is whether an individual who owns a share in a company with outstanding credits can be deemed a ‘ credit ORG . The view of [ the court ] on these questions is as follows :

The expression ‘ credit ORG is not legally defined . It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use , by them personally or by physical or legal persons connected with them , of unsecured bank credits , which have remained unpaid and have been listed by the [ ORG ] as unrecoverable . The expression is pejorative , because it implies that the people in question are supposedly responsible for the crisis in the banking system and the socalled ‘ ORG of the banks – generally persons who have become rich in a criminal way . A list of ‘ credit FAC as an official document emanating from the [ ORG ] has never existed . There exists a list of the persons with outstanding credits as of DATE , which has been compiled pursuant to ORG . This LAW requires the [ reportable ] credits to exceed MONEY – it does not concern only credits with CARDINAL or more figures . According to [ the LAW ] , the list is published in a special bulletin , which is not covered by bank secrecy and is sent to ORG , ORG , the tax and customs authorities and ORG . After its receipt at ORG on DATE the list was made available to journalists and was published in full or in part as a list of the “ credit millionaires ” . In fact , the vilifying circumstance is not to own specific companies , but to be a ‘ credit millionaire’ . In the view of the [ court ] , however , such a dissection of the statement in [ the applicant ] ’s publication and the application of paragraph CARDINAL of LAW of DATE ] to CARDINAL of the resulting parts can not be made , for the following reasons . Readers are not bound to accept journalistic statements uncritically . An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful . Such facts in the case at hand are the citing of an official document featuring [ Mr PERSON ’s name ( untrue ) and the citing of specific companies owned by [ Mr PERSON ] with specific debts ( also untrue ) . There is no doubt that without these untrue allegations the statement that [ Mr PERSON ] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him . It would be wrong to divide an averment containing a vilifying circumstance into CARDINAL parts for a second reason : the damage to the reputation and the public esteem of a defamed person is not a constant value . The degree of that damage may vary significantly . In the instant case , where there is a statement that an individual is a ‘ credit millionaire’ because of his involvement in companies which have received credits , the [ court ] considers that the greater the amount of the outstanding credits , the more numerous the companies having received them , the more direct the connection of the individual with these debtor companies , and , last but not least , the noisier the public scandal , the more vilifying is the statement . [ Mr PERSON ] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not MONEY , if the article had cited CARDINAL unknown company instead of CARDINAL companies which had become notorious because of their link with criminal investigations , and if [ Mr PERSON ] had not been indicated as [ their ] sole owner instead of merely a shareholder [ in them ] .

Because of the meaning implied in the expression ‘ credit millionaire’ the [ court ] considers that in the event of a credit taken by a company , an individual could be deemed as having profited therefrom , in the range of MONEY , only if [ his or her ] connection with that company is direct , and not through the intermediary of participation in companies which in turn participate in other companies , and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him . The link may likewise exist through participation in the management [ of these companies ] . At the time when the credit was received [ Mr PERSON ] did not participate directly in Vitaplant [ OOD ] . He was neither a manager of that company , nor a substantial shareholder . The credit itself was not in an amount which would make him a ‘ millionaire’ .

The arguments relating to the existence of a civil judgment dismissing a tort action by Mr PERSON against ORG are irrelevant , as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the nonpecuniary damage sustained , whereas the civil courts are under no obligation to gather such evidence . This judgment is not binding on the criminal court .

The arguments relating to the lack of mens rea are unfounded . The court considers that the [ lower court ] has correctly accepted as true [ the applicant ] ’s statements that she had verified the information from CARDINAL independent sources – the Members of ORG and [ Mr N. ] , after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers . In spite of that , the defamation was committed recklessly . [ The applicant ] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access . The opinion of the MPs was unofficial , as established by the testimony of [ the applicant ] ’s colleagues , whereas [ Mr N. ] , not having his own information , referred [ the applicant ] to the publication of ORG . This leads to the conclusion that [ the applicant ] was aware of the possibility that the vilifying information might not be accurate , but disregarded this concern in order to get her story to print as soon as possible . ”

The relevant provisions of the LAW of DATE read as follows :

“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , written or oral , sound , or image , or in any other way .

NORP This right shall not be used to the detriment of the rights and reputation of others , or for the incitement of a forcible change of the constitutionally established order , the perpetration of a crime , or the incitement of enmity or violence against anyone . ”

“ The press and the other mass media shall be free and not subject to censorship . ”

“ CARDINAL . Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens , nor against national security , public order , public health or morals .

NORP Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them , unless the information is a state secret or a secret protected by law , or it affects the rights of others . ”

Article CARDINAL of LAW of DATE , as in force since DATE , provides as follows :

“ CARDINAL . Whoever divulges a vilifying fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from MONEY , as well as by a public reprimand .

NORP The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence . ”

If the defamation is committed through a publication , it is punishable by a fine ranging from MONEY , as well as by a public reprimand ( Article QUANTITY CARDINAL ) and CARDINAL of the LAW , as in force since DATE ) . Since DATE all instances of defamation are privately prosecutable offences ( LAW , as in force since DATE ) . In DATE an unofficial collection of the caselaw of GPE and ORG in defamation cases was published ( PERSON практиката на PERSON районен съд , PERSON , DATE г. ) ; it reported the case against the applicant at p. CARDINAL .

Article DATE of the Code , as in force at the relevant time , allowed the courts to replace convicted ORG criminal liability with an administrative punishment DATE a fine ranging from ORG CARDINAL to ORG DATE if ( i ) the offence of which they had been convicted was punishable by up to CARDINAL years’ imprisonment or a lesser penalty , in respect of an intentional offence , ( ii ) they had not been previously convicted of a publicly prosecutable offence and their criminal liability had not been previously replaced by an administrative punishment , and ( iii ) the damage caused by the criminal act had been made good . Along with the fine the court could impose occupational disqualification of DATE .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

Since DATE the applicant has been registered with ORG ) in GPE and , since DATE , she has been taking part in different programmes provided by it . CARDINAL of these programmes , called activity guarantee ( aktivitetsgaranti ) , was a programme for persons who were , or who were at a risk of becoming , unemployed for a long period as well as for groups of persons who often had difficulties in finding a job . The purpose of the programme was to give the participants greater opportunities to find a job and it involved different activities such as short term education and the possibility to try different kinds of work . Each person who participated in the programme had a personal supervisor from ORG and together they were supposed to set up a plan for the activities in which the participant was taking part . The participant was obliged to attend meetings and to meet his or her supervisor on a regular basis , and he or she also had an obligation to apply for suitable jobs which were advertised through ORG .

On DATE ORG ( apparently on delegation from ORG ) ) decided to withdraw its approval for the applicant to take part in the programme in which she was participating . The decision was taken in accordance with Section CARDINAL(a ) of the Ordinance on Labour Market Policy Programmes ( förordningen om arbetsmarknadspolitiska program , SFS CARDINAL:CARDINAL ; hereafter " the DATE Ordinance " ) . According to ORG , the applicant had not been acting in a proper manner in relation to the demands laid upon her . The decision was taken on the basis of a report drawn up by ORG . The report stated that the applicant had been called to attend information meetings on several occasions but that she had either announced that she was not able to attend or she had simply not attended . It also stated that the applicant , at an information meeting , had made statements that led to a job interview being cancelled .

When the applicant ’s permission to participate in the programme was revoked , her subsistence support in the form of activity support ( see § CARDINAL below ) was also revoked , leaving her without any income . According to the applicant this forced her to pay for living expenses out of her savings for DATE and to take PERCENT early retirement in DATE .

On DATE the applicant appealed against the decision of ORG to ORG ( PERSON - nadsstyrelsen ORG “ the Board ” ) . She claimed that there were several statements in the report which were not true . For instance , she had been ill and hospitalised and therefore had not been able to attend certain meetings and she had informed ORG about the situation . She also alleged that a note in the report which stated that on CARDINAL occasion she had not attended a meeting was not true . Moreover , she claimed that , at the aforementioned information meeting , she had told an official of ORG that she felt she was not suited for the job in question . Thereafter , the official had told her that she could leave .

On DATE the ORG decided to reject the appeal . It found that the applicant had , on several occasions in DATE and DATE , announced that she was not able to attend certain meetings ; on one occasion because she had planned to go on vacation . ORG took into account the possibilities to adapt the kind of work the applicant was offered , and the fact that she had not proved her medical problems or shown that they were of a permanent nature , and found that she had not done everything in her power to get a job . Therefore , the ORG concluded that there were grounds to withdraw her entitlement to participate in the programme . Consequently , the appeal was rejected .

In the ORG ’s decision , it was expressly stated that there was no possibility in accordance with LAW DATE Ordinance to appeal against the decision .

On DATE the applicant wrote a letter to ORG , expressing her dissatisfaction with its decision . In the letter she referred , inter alia , to the fact that the ORG in its decision had noted that no appeal lay against the decision and asked how she could obtain redress .

On DATE the applicant submitted a complaint to the Chancellor of Justice ( NORP ) where she complained , inter alia , about the authorities’ decisions and their handling of her case . She requested damages , but did not claim that there had been a breach of her rights under LAW . This complaint seems still to be pending before the Chancellor of ORG .

A person who is unemployed may be entitled to subsistence support through the unemployment insurance . The main regulations in this area are given in LAW ( lagen om arbetslöshets - försäkring , LAW ; hereafter " LAW " ) and LAW ( lagen om arbetslöshetskassor , LAW ) . Unemployment benefits are financed through membership contributions made by the members of the unemployment insurance funds and ORG funding . A person who is not a member of an unemployment insurance fund can still receive some benefit , a so - called basic insurance . Benefits are paid to a person who is unemployed and has fulfilled a qualifying period of employment , that is he or she has worked a certain number of DATE before becoming unemployed , and who fulfils certain basic qualifying conditions , for example , he or she must actively be looking for work . At the relevant time benefits were provided for a limited number of DATE . After that , a new qualifying period of employment had to be completed in order to qualify for a new period of benefits .

According to Section CARDINAL(a ) of LAW , the benefits will be reduced for a certain period if the beneficiary , without acceptable reasons , rejects suitable work or if he or she , without having expressly rejected the work , by his or her actions causes employment not to be realised . The third time this happens the beneficiary will be disqualified from receiving benefits . According to LAW , the same will happen if a beneficiary without acceptable reasons rejects an assignment to a labour market policy programme ( arbetsmarknadspolitiskt program ) . Decisions regarding the right to the benefits regulated in LAW can be appealed against to the administrative courts .

The activity guarantee scheme was CARDINAL of several different labour market policy programmes . The scheme ceased to be in force on DATE . According to Sections CARDINAL and CARDINAL of the DATE Ordinance , a person could ( the word “ may ” ( får ) was used in the GPE ) be assigned to the activity guarantee scheme if he or she was DATE , was or was at risk of becoming unemployed for a long time and was searching for work through the public employment service . Section CARDINAL of the DATE Ordinance stated that an assignment to the programme had to be motivated in terms of labour market policy and , thus , an assignment could only be made if it appeared appropriate both for the individual and from an overall labour market policy perspective . Moreover , Section CARDINAL stated that an assignment to the activity guarantee scheme would apply for as long as it was justified in terms of labour market policy .

A person who entered into the activity guarantee scheme would no longer be entitled to unemployment benefits . His or her subsistence would instead be paid according to the provisions in the Ordinance on Activity Support ( förordning om aktivitetsstöd , SFS CARDINAL:CARDINAL ) . LAW stated that a person who entered into the activity guarantee scheme would lose his or her remaining DATE of unemployment benefits . In the preparatory works preceding the amendment of LAW Act the Government stated that it was not necessary to allow people who left the activity guarantee scheme a possibility to use their remaining DATE of unemployment benefits , “ since the system around the activity guarantee scheme means that no one should have to leave the activity guarantee without having his or her support secured ” ( Government PERSON p. DATE ) .

The Ordinance on Activity Support stated that a person who took part in , inter alia , the activity guarantee scheme was entitled to economic support . According to LAW , a person who was or would have been entitled to unemployment benefits or who had received unemployment benefits for the longest period for which benefits could be provided , would be given activity support equivalent to the unemployment benefits he or she would have received under LAW . A person who was not entitled to benefits as described above would still be given a specific amount per day in activity support . When a person who had been taking part in a programme such as the activity guarantee ceased to be part of it , he or she was no longer entitled to the activity support .

Section CARDINAL(a ) of the DATE Ordinance stated that an assignment to the activity guarantee scheme would be revoked if a person assigned to it refused an offer of suitable work or another measure under the guarantee scheme without an acceptable reason . An assignment to the activity guarantee scheme would also be revoked if the individual did not act in a proper manner or otherwise disrupted the activities . Moreover , an assignment could be revoked if there were other special reasons to do so .

According to Section CARDINAL(b ) of the DATE Ordinance , if an assignment to the activity guarantee scheme was revoked because the individual had refused an offer of suitable work or another measure under the guarantee scheme , without an acceptable reason , the individual would ( the word “ shall ” ( skall ) was used in the GPE ) be reassigned to the activity guarantee scheme after a suspension of DATE , if certain basic requirements were met . In the Government PERSON which preceded the introduction of this provision , the Government noted that the consequences for those who had their assignment to the activity guarantee scheme revoked would be far - reaching unless they had fulfilled a new qualifying period of employment . The Government also observed that the activity guarantee scheme had the character of a last economic protection among the labour market policy measures for those who were , or were at a risk of becoming , unemployed for a long period . Thereafter the Government stated : “ The person applying should therefore in principle have a right to participate in the activity guarantee until he or she finds a solution for his or her unemployment situation , on condition that he or she in an active way contributes to such a solution . ... A person who has had his or her assignment to the activity guarantee revoked on the ground that he or she has refused an offer of suitable work or another measure under the guarantee scheme , shall therefore be offered a new assignment to the guarantee . ” ( Government PERSON CARDINAL p. CARDINAL )

Decisions regarding the revocation of an assignment to a labour market policy programme , including the activity guarantee scheme , were taken by ORG . Appeals against ORG decision could be made to ORG . According to LAW Ordinance , no appeal lay against ORG decisions .

In connection with a reorganisation of ORG into ORG , the issue of whether decisions regarding labour market policy programmes should be subject to appeal was considered by the Government . It first stated that there was a right to be assigned to the labour market policy measure called “ new start jobs ” ( nystartjobb ) and then stated , inter alia , the following : “ In the case of other labour market policy measures and financial compensation , assignment decisions to them depend to a great extent on the situation in the labour market . There is no right to receive such a measure and there is no right to retain it either . This means that the decisions to be taken by the new agency in these matters , including the revocation of a measure , do not need to be examined by a court . Nor are the decisions suited to an examination by a court . ” ( Government PERSON p CARDINAL )

The handling of matters in the NORP public administration is regulated by LAW ( förvaltningslagen , SFS CARDINAL ; hereafter " LAW " ) . LAW , of the DATE Act states that the provisions in the Act are subsidiary if they differ from the provisions in any other act or ordinance . According to LAW , a decision may be appealed against by any person whom the decision concerns , provided the decision affects him or her adversely and an appeal against the decision is permitted . Section CARDINAL(a ) states that appeals are to be made to the administrative courts . The preparatory works ( Government PERSON CARDINAL/CARDINAL:CARDINAL pp CARDINAL ) state that CARDINAL of the purposes of LAW ) is to assign a competent court when a prohibition to appeal against a decision has to be set aside because it would be in violation of the LAW .

On DATE a new second paragraph was added to LAW which states that the provisions on appeal according to LAW should always apply if it is necessary in order to provide for everyone ’s right to a fair trial in the determination of their civil rights or obligations as laid down in LAW . According to the preparatory works ( Government PERSON p CARDINAL ) , one of the reasons for amending LAW was to make it clear that LAW provisions on appeal applied regardless of what was stated in other acts or provisions , if this was necessary in order to satisfy the right to access to court in accordance with the Convention .

Section CARDINAL § CARDINAL of the DATE Act states that an authority has an obligation to inform a party about how to appeal against all decisions that affect the party adversely , if the decision can be appealed against .

In a decision of CARDINAL DATE ( ORG DATE p. CARDINAL ) ORG ( ORG domstolen ) found that a dispute over agricultural subsidies concerned a civil right in the sense of LAW and found that a trial before a court should be allowed . Therefore , the court set aside the prohibition to appeal against the authority ’s decision . Similarly , ORG ( Regeringsrätten ) has set aside prohibitions to appeal against different authorities’ decisions , when the cases concerned civil rights and obligations ( see , for example , decision of DATE in RÅ DATE ref . CARDINAL and decision of DATE in RÅ DATE ref . CARDINAL ) .

It follows from LAW , LAW ( ORG , ORG ) that the ORG is liable to pay compensation for , inter alia , financial loss caused by a wrongful act or omission in connection with the exercise of public authority . From LAW , LAW it follows that , under certain circumstances , the ORG is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority .

In a judgment of DATE ( ORG DATE p. CARDINAL ) , ORG found that an individual had a right to bring a civil action against the ORG before the national courts on the ground that there had been a violation of LAW because a criminal case against the individual had not been concluded within a reasonable time . ORG has subsequently , in a judgment on DATE ( ORG DATE p. CARDINAL ) , found that individuals have a right to bring civil suits against the ORG for violations against any ORG of the ORG when the ORG , according to the ORG , has an obligation to pay damages for the violation and such obligation can not be based on national legislation .

Anyone who wishes to claim compensation from the ORG for financial loss , which he or she considers to have been caused by a wrongful decision taken by a court or an administrative ORG authority , can proceed in CARDINAL different ways : He or she may either petition the Chancellor of Justice in accordance with LAW on ORG against the State ( Förordningen om handläggning av skadeståndsanspråk mot staten , ORG ) , or bring a civil action against the ORG in the ordinary courts . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings before the courts .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr E. Dokič , a lawyer practising in GPE .

In DATE a company , HIT , published in a local newspaper an invitation to submit proposals for the name of a new casino . A reward of CARDINAL NORP tolars ( MONEY ) was promised to the person whose proposal was chosen .

The applicant sent a list of CARDINAL proposals in the prescribed period .

On DATE HIT informed the applicant about the CARDINAL chosen proposals , neither of which had been picked out of the applicant ’s list .

It appears that the name that the new casino was finally given was not one of the chosen ones , but one from the applicant ’s list .

Therefore , in DATE the applicant , relying on the provisions of ORG o avtorski in sorodnih pravicah ) , requested ORG to disallow further use of the casino ’s name and to order HIT to remove all visible signs containing it . The company would have been exempted from this obligation if it had paid the applicant the amount of CARDINAL NORP tolars ( MONEY ) .

On DATE the court rejected the applicant ’s claim . It held that the term from the applicant ’s list , finally used to name the casino , did not constitute the work of an author and was therefore not protected by copyright . It concluded that the applicant could have claimed the promised reward ( see above ) , but had failed to do so .

On an unspecified date the applicant appealed to ORG ( PERSON sodišče v PERSON ) .

On DATE the court dismissed the applicant ’s appeal .

On DATE the applicant , not represented by a lawyer , lodged a constitutional appeal .

On DATE ORG ( PERSON sodišče ) dismissed the applicant ’s appeal . The applicant did not indicate the date on which this decision was served on him .

The applicant dated his first letter to the ORG DATE . The applicant posted it , as a registered letter , at TIME on DATE at the post office in GPE .

On DATE the applicant lodged a duly completed application form , DATE after receiving the ORG ’s letter advising him to do so .

Section CARDINAL - Just satisfaction for damage sustained prior to implementation of this Act

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest . ...


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

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

The applicant is the father of the child NORP , born out of wedlock on CARDINAL DATE . The applicant acknowledged paternity immediately after his son ’s birth .

The applicant and the child ’s mother ( PERSON ) separated permanently in DATE . The last contact between the applicant and his son to which PERSON gave her consent took place in DATE . Following this , PERSON denied the applicant any access to his son . The applicant ’s frequent requests to the family courts to be granted access rights remained unsuccessful .

On DATE PERSON married Mr PERSON

On DATE Mr and PERSON applied to adopt the applicant ’s son .

By order of CARDINAL DATE ORG ( ORG ) granted the adoption .

On DATE , following the applicant ’s complaint , ORG ( Bundesverfassungsgericht ) lifted the binding effect of the adoption order of CARDINAL DATE insofar as it prevented a fresh consideration of the case ( PERSON ) and remitted the case to ORG . ORG found that the legal provision permitting adoption of a child by his mother and stepfather without the natural father ’s consent and without taking into account the latter ’s interests in the maintenance of a parental relationship violated his rights to the enjoyment of his family life as guaranteed by LAW sentence CARDINAL of LAW ) . Accordingly , the legislator was ordered to amend the legal provisions .

On DATE new legislation entered into force , providing that a minor ’s adoption depended on both GPE consent . However , if the mother of a child born out of wedlock exercised sole custody , the court had to substitute the natural father ’s consent if the child would suffer a disproportionate disadvantage if not adopted ( section DATE § CARDINAL of the amended LAW , see relevant domestic law below ) .

On DATE the counsel representing PERSON and PERSON filed a request to substitute the applicant ’s consent to the child ’s adoption by PERSON

On DATE ORG , having heard the applicant , PERSON and PERSON and the child as well as expert opinion , substituted the applicant ’s consent to the adoption pursuant to LAW . That court found that the child ’s interest in being adopted by his stepfather outweighed the applicant ’s interest in the maintenance of the parental bonds by far . It noted that the child NORP had expressed that he felt as a full member of the PERSON family and that he strongly wished to be legally accepted as PERSON child . It further noted that the PERSON family had been considerably disturbed during DATE by numerous confrontations with the applicant . Furthermore , the court - appointed expert had clearly stated that the adoption would be in the child ’s interest . With regard to the applicant ’s interests , ORG noted that the adoption would lead to a severing of the parental bonds . It took however into consideration that the child had lived for DATE with the PERSON family and that no father - son relationship existed between the applicant and the child . Finally , ORG considered that the adoption might put an obstacle to a later reconciliation between the applicant and the child , but considered that this would not prevent the child from getting in touch with the applicant if he later on might wish to do so .

On DATE ORG rejected the applicant ’s complaint against ORG decision .

On DATE the applicant lodged a complaint against the decision of ORG of DATE with ORG and a further complaint against that same decision with ORG ( Oberlandesgericht ) .

On DATE the applicant lodged his application with the ORG .

On DATE ORG rejected the applicant ’s constitutional complaint as inadmissible .

On DATE ORG rejected the applicant ’s complaint . That court found that the impugned decisions did not violate the applicant ’s rights under LAW and under LAW . In so far as the requirements of adoption in the case of an unmarried father who had never held ( joint ) custody and had never “ had responsibility for the child ” were less than in the case of other parents , this distinction appeared factually justified in the circumstances of life that were typically found in this case . Furthermore , the lower courts had duly considered the applicant ’s interests . ORG added that the applicant ’s long lasting fight for his rights had forced the child and his new family into the defensive , which made it necessary in the child ’s interest to permit the adoption . It further noted that the last contact between the applicant and the child , which had taken place with the mother ’s consent , was in DATE when the child was merely DATE and that the applicant ’s further endeavours to get into touch had contributed to the child ’s aversions . ORG considered that the length of the proceedings – which could not be attributed to the courts – had put the child under particular pressure and had thus weakened the applicant ’s position .

On DATE ORG issued an order confirming the child ’s adoption by PERSON ORG noted that the child had fully integrated into the PERSON family . According to the ORG previous findings , the child would suffer a disproportionate disadvantage if not adopted . ORG found that the other legal prerequisites were met and , in particular , that the child had firmly expressed that he wished to be adopted .

On DATE ORG rejected the applicant ’s complaint as being inadmissible .

On DATE the applicant filed a constitutional complaint against ORG decision of DATE , ORG decision of DATE and ORG decision of DATE .

On DATE the applicant lodged a constitutional complaint against ORG decision of DATE . He alleged that the impugned decisions and the legal provisions they were based upon violated his right to the enjoyment of his family life under LAW and under LAW . He further complained about a violation of his right to equal treatment as guaranteed by LAW .

By letter of CARDINAL DATE ORG informed the applicant that it had communicated his joint complaints to the Government and to several other interested parties for comments . By letter of CARDINAL DATE the court informed the applicant that – due to the high workload of the section – it could not be predicted when a decision on the admissibility of his complaint could be given .

On DATE ORG , sitting as a panel of CARDINAL judges , quashed the decisions of ORG of DATE , of ORG of DATE and of ORG of DATE and DATE and ordered the Land of Baden - Württemberg to reimburse the applicant the necessary expenses incurred by the proceedings before ORG .

ORG found that the applicant ’s case could be adjudicated by a chamber of CARDINAL judges as the questions raised by the applicant were no longer of fundamental importance .

The court noted in particular that ORG , in a decision given on DATE ( see relevant domestic law and practice , below ) , had issued valid guidelines which assured that section DATE § CARDINAL of LAW was interpreted in accordance with LAW and that a father who had never held parental authority was not discriminated against as compared to a father who had .

The Constitutional Court emphasized the fact that the adoption severed all legal bonds to the natural father , including alimony claims and rights of succession . Furthermore , it was generally not to be regarded as being in the child ’s best interest to exclude access rights of the natural parent . Summing up , ORG found that a child ’s adoption by his or her stepfather could not generally be regarded as being in the child ’s best interest .

Turning to the applicant ’s case , ORG found that the impugned decisions violated the applicant ’s right to equal treatment under LAW of LAW , as they discriminated against the applicant when compared to a father who had previously held parental authority . It noted , in particular , that the lower courts had failed to take into account the applicant ’s submissions that he had lived for a certain period of time with the child and had thus assumed his responsibility as a parent . The lower courts had further failed to examine the reasons which had prevented the applicant from maintaining a father - child relationship . As could be established from the case - file , the child ’s mother had prevented the applicant ’s access to the child after meeting her future husband . ORG finally found that the applicant ’s later attempts to get in touch with the child should not be held against him .

Having regard to these findings , ORG did not find it necessary to examine the applicant ’s further complaints . As a result of this judgment , the proceedings concerning the adoption of the applicant ’s son were terminated .

On DATE and CARDINAL DATE ORG ordered the applicant ’s arrest on the basis of LAW , because he had refused to reimburse court fees incurred by the adoption proceedings and in order to compel him to render an affidavit ( eidesstattliche ORG ) .

On DATE ORG refused to entertain the applicant ’s complaint against the arrest orders .

The applicant was arrested on DATE and released following court order of CARDINAL DATE .

LAW ) reads as follows :

“ ( CARDINAL ) Marriage and the family shall enjoy the special protection of the state .

( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The state shall watch over them in the performance of this duty ... ”

The statutory provisions on adoption are to be found in LAW ( Bürgerliches Gesetzbuch ) .

Section DATE ( CARDINAL ) of that law originally provided that a child born out of wedlock could be adopted by its mother or stepfather without the natural father ’s consent .

On DATE ORG ( Bundesverfassungsgericht ) ruled that this provision violated the natural father ’s rights to the enjoyment of his family life as guaranteed by LAW ( CARDINAL ) of LAW insofar as it did not require the natural father ’s consent and did not allow to weigh the latter ’s interests .

On DATE LAW ( Gesetz zur Reform des GPE ) entered into force , which amended the relevant provisions on child adoption as follows :

Under section DATE LAW the adoption of a child is permissible if it is in the interest of the child ’s well - being and if it can be expected that parent - child relations will develop between the person applying for the permission to adopt and the child .

An adoption may only take place with the natural GPE consent ( section DATE § CARDINAL ) .

Section CARDINAL , insofar as relevant , reads as follows :

Section DATE substitution of a parent ’s consent

“ ( CARDINAL ) Upon the child ’s request , the court has to substitute its consent for that of a parent , if that parent has grossly and persistently violated his or her duties toward the child or if he has demonstrated that the child is indifferent to him , and if the child would suffer a disproportionate disadvantage in the absence of an adoption ...

( CARDINAL ) The court can further substitute its consent for that of a parent who is ... permanently unable to care for the child if the child , in the absence of an adoption , could not be raised within a family , which would seriously endanger its development .

( CARDINAL ) In the cases of section § CARDINALa § CARDINAL the court has to substitute its consent for the father ’s if the child would suffer a disproportionate disadvantage in the absence of an adoption . “

Section CARDINAL § CARDINAL provides that the mother of a child born out of wedlock exercises sole custody if no other agreement has been reached between the parents .

On DATE ORG ( ORG ) in separate proceedings which did not concern the applicant ’s case , laid down the following guiding principle for the interpretation of section DATE of LAW :

“ A disproportionate disadvantage in the absence of an adoption can only be assumed if the adoption would be so beneficial for the child that a parent who reasonably cared for the child ’s well - being would not insist on the maintenance of parental ties . ”

( “ ORG gereicht ... PERSON Kind zu unverhältnismäßigen PERSON , wenn die Adoption einen so erheblichen FAC für das Kind bieten würde , daß ein sich verständig um sein Kind sorgender PERSON der Erhaltung des Verwandschaftsbandes nicht bestehen würde . ” )

ORG further emphasised that it was not , as a general rule , in the child ’s interest if the adoption was aimed at excluding the natural father from exercising access rights . It further had to be considered that the adoption generally did not alter the child ’s opportunity to live within the new family , and only gave a legal framework to a factually existing situation . With regard to the father , one had to consider whether there existed a real parent - child - relationship or , if not , which reasons had prevented the father from building up such a relationship .

ORG concluded that section DATE , if interpreted in accordance with these guidelines , respected the natural father ’s rights under LAW .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in Eksjö . The respondent Government were represented by PERSON , ORG .

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

On DATE S. was attacked several times outside his home by a person using a knife or a bayonet .

S. was heard by the police on CARDINAL occasions in DATE and DATE . Thereafter , on DATE , defence counsel was appointed for the applicant . A further police interview with PERSON was held on DATE . According to the applicant , he and his counsel were not informed of this interview or invited to attend it .

The applicant was subsequently charged with attempted murder of S. The applicant and PERSON knew each other , having served time together at the same prison and having met thereafter on a couple of occasions at the home of S.

On DATE the applicant received a copy of the records of the preliminary investigation . Those records state that the applicant had no objection or comments to the documentation of the investigation .

On DATE , CARDINAL May and DATE ORG ( tingsrätten ) of PERSON heard the case . On DATE came to the court ’s waiting room but then left . The prosecutor stated at the hearing that he had talked to S. in the waiting room who had said that he had nothing to add but that he stood by the information he had given to the police . The court ordered that S. be fetched by the police , proceeded with the hearing but later discontinued it as S. had not been found . On DATE ORG adjourned the case , noting that the police had not been able to enforce the court ’s order that S. be brought to the hearing . On DATE again came to the waiting room but left before the hearing started . ORG then decided to continue the hearing of the case in the absence of S. It allowed that his statements made during the preliminary investigation be read out .

By a judgment of DATE ORG convicted the applicant of aggravated assault of S. and attempted murder of another person who had been attacked on a different occasion . The applicant was sentenced to DATE in prison .

Both the applicant and the public prosecutor appealed to ORG ( PERSON hovrätt ) . The prosecutor requested that PERSON be heard in person before the appellate court or , alternatively – in the event that he would not appear – , that his statements to the police be admitted as evidence . The applicant objected to the alternative request , stating , inter alia , that it would violate the applicant ’s rights under the Convention .

On DATE ORG decided to refuse the prosecutor ’s alternative request .

ORG heard the case on DATE , DATE and DATE . Following S. ’s non - appearance on DATE , the court ordered that he be brought to the court by the police . The police were not able to enforce the order in time for DATE . However , on DATE , serving a prison sentence at the time , was taken to the court by the transportation service of ORG ( Kriminal - vårdsstyrelsen ) . At the hearing PERSON refused to give evidence except for stating that it was not the applicant who had attacked him and that he had not previously named the applicant as the perpetrator . The court then decided to allow as evidence the statements made by PERSON during the police investigation .

By a judgment of CARDINAL DATE ORG convicted the applicant of attempted murder also in regard to the attack on PERSON and sentenced him to imprisonment for a total of DATE for the CARDINAL crimes . With respect to the statements made in the case by PERSON the court stated , inter alia , the following :

“ During the police investigation [ S. ] first stated that he was attacked by a man , who was accompanied by another man , and then that the attacker came in the company of a woman . ... During the preliminary investigation it also occurred , according to the testimony made by police officer [ NORP ] , that [ S. ] was asked whether the right person was detained in the case , and then nodded affirmatively and said ‘ you know that , of ORG .

[ S. ] was summoned twice to ORG main hearing . On both occasions he came to the court ’s waiting room but disappeared before the hearing started . During the hearing before ORG , [ S. ] showed signs of being deeply upset . He acted as could be expected from a person , who is afraid of reprisals . ...

The fact that [ S. ] has not been heard by ORG and mostly refused to give evidence before ORG raises the question of the application of LAW the right to a fair trial and the right to examine or have examined witnesses ... . ORG has in a number of judgments dealt with this issue ( see , inter alia , Unterpertinger ... , where the LAW was found to have been violated , and PERSON ... , where no such violation was found ) . LAW , LAW , subsection CARDINAL of LAW ( PERSON ) shall be interpreted restrictively in the light of DATE and ORG application thereof ... .

ORG notes at the outset that the presentation of material from the preliminary investigation in itself can not be considered as a violation of LAW . According to the above - mentioned judgments , it seems that the decisive point as to whether there has been a violation is whether the conviction has been based primarily on this material . In order for ORG to be able to draw a conclusion on this point , it is first necessary to examine the evidence in the case .

There is no doubt that [ S. ] has sustained the injuries alleged by the prosecutor , nor as to how this happened . As to the identity of the perpetrator , [ S. ] has avoided to directly identify [ the applicant ] . Therefore , a conviction can not be based on [ S. ’s ] statements alone . The prosecutor has invoked certain supplementary evidence . In addition to this evidence , it is of importance that [ the applicant ] has not invoked any form of alibi evidence . ORG is of the opinion therefore that the statements made by [ S. ] during the preliminary investigation are not the primary evidence in the sense laid down by ORG . Article CARDINAL of the LAW can not therefore be considered as prohibiting this evidence from being considered by ORG .

On the basis of the available material , ORG makes the following assessment . According to what [ S. ] has stated , the perpetrator visited him on DATE . This information should be considered in conjunction with the statement of [ witness CARDINAL ] that [ witness CARDINAL ] DATE met [ S. ] together with a person whom [ witness CARDINAL ] has identified as [ the applicant ] , and then lends support to the conclusion that [ the applicant ] is the perpetrator . Although the identification of [ S. ] made by [ witness CARDINAL ] at a photo line - up does not have any real value as evidence , her observation of a man outside the home of [ the applicant ] on DATE confirms what [ S. ] has stated regarding his visit to the home of the perpetrator . The observations made by [ witness CARDINAL ] concerning the perpetrator ’s looks do also , to some extent , support the conclusion that [ the applicant ] is the perpetrator . The statements made by [ S. ] during the preliminary investigation have thus been verified on various points . This fact together with what has otherwise been revealed in the case is highly compromising for [ the applicant ] . It is apparent to ORG that [ S. ] throughout the investigation and the hearing of the case has been afraid of [ the applicant ] . The fact that [ S. ] during the oral hearing before ORG denied that [ the applicant ] was the perpetrator can therefore be disregarded . ORG finds it proven beyond reasonable doubt , as did ORG , that [ the applicant ] is identical with the perpetrator . ”

On DATE ORG ( Högsta domstolen ) refused the applicant leave to appeal .

LAW , section CARDINAL of the Code of Judicial Procedure provides :

“ A statement made in writing on the occasion of already opened or imminent legal proceedings or a written record of a statement made on the occasion of such proceedings to the prosecutor or the police or otherwise out of court may be invoked as evidence in the proceedings only

NORP if this is specifically prescribed ,

if the person who made the statement can not be examined at or outside the main hearing in the case or otherwise before the court , or

if there are particular reasons , taking into account the costs and inconvenience that an examination at or outside the main hearing may entail , the possible gain of such an examination , the significance of the statement and other circumstances .

The rules on statements in writing or in written records in the first paragraph apply also in regard to a phonetic or similar record of a statement . ”

Chapter CARDINAL , section CARDINAL , subsection CARDINAL reads :

“ During the hearing of a witness , the witness ’s prior statement before a court or before a prosecutor or the police may be presented only when the witness ’s testimony differs from what he has previously stated or when the witness declares that he can not or will not speak . ”

The latter provision applies also to a hearing of an injured party , according to LAW , section CARDINAL , subsection CARDINAL .


Violation of Article 6+6-3-e - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-e - Free assistance of interpreter);Pecuniary damage - claim dismissed

The applicant formerly managed “ The Godfather Restaurant ” in GPE upon GPE , which was operated by a company of which the applicant was a director . Following an inquiry by ORG and ORG and Excise in DATE into the restaurant and the applicant , the company went into liquidation and ownership of the lease of the restaurant was transferred to a new company controlled by the applicant . However , the restaurant was run by a succession of management companies under short - term management contracts . The various companies were all registered for ORG NORP ” ) purposes but failed to make any LOC payments or returns to the ORG and Excise authorities . In addition , wages were paid to employees in cash and were not declared to ORG . The resulting loss of ORG was assessed at MONEY ( “ GBP ” ) and the accumulated losses in respect of ORG contributions were assessed at ORG . In DATE the applicant was declared bankrupt as a result of civil proceedings brought by ORG to recover unpaid tax .

On DATE the applicant was arrested and on DATE charged with various offences of fraudulently evading ORG . He was remanded in custody . His applications for bail on DATE , CARDINAL DATE and DATE were refused .

The applicant was granted legal aid on DATE . The legal aid order covered both the committal hearings and the actual trial . The applicant was represented throughout the proceedings by a ORG ( “ QC ” ) , who was also a Recorder , a very experienced junior counsel and CARDINAL different firms of solicitors .

On DATE the GPE upon ORG committed the applicant for trial before ORG at GPE .

Preliminary hearings were held on DATE and DATE . At the hearing of PERSON the applicant was indicted with CARDINAL others on CARDINAL counts of being knowingly concerned in the fraudulent evasion of GPE ( DATE and DATE ) and of taking steps with a view to the fraudulent evasion of ORG ( DATE and DATE ) . The applicant pleaded not guilty .

At none of these hearings did either the applicant or his legal team request the provision of an interpreter , nor suggest to the court that the applicant required the services of an interpreter .

At the trial on DATE , the applicant , on the advice of counsel , changed his plea to guilty . He was also indicted on another count of cheating the public revenue and pleaded guilty to that charge too . The court was informed that the applicant disagreed on the quantum of the sums which formed the basis of the plea with the consequence that further discussion was needed on this matter with the prosecution . Defence counsel informed the court for the first time that the applicant had :

“ considerable difficulty in communicating , save in very simple concepts , in LANGUAGE . Now for the purpose of consultation we can get by , but one of the difficulties is that his LANGUAGE is very poor and his NORP is very NORP ” .

Counsel invited the court to direct that an interpreter be present at the subsequent hearing , given that at either a hearing or indeed a plea :

“ ... certain complicated matters might well have to be put before the court , and which he should understand as they are being put ” .

The court granted this request and adjourned for reports to be written and for the parties to reach agreement on the issue of quantum , after convicting the applicant of all charges .

At the following hearing concerning sentence held on DATE , the court noted that no professional interpreter was present despite its earlier direction . The applicant 's counsel stated that :

“ ... it appears that no arrangements have been made , in which case I think that we shall have to make do and mend . It may require an occasional adjournment if something needs to be explained . It has been discussed extensively and obviously already with the [ applicant ] and , although he may not follow the detail of the proceedings , he certainly knows the outline of what the prosecution will say . I imagine that their case will very much follow the summary , and he knows the burden of what I intend to say . ”

The trial judge asked whether anyone in court who knew the applicant was fluent in both NORP and NORP and could provide interpretation for the applicant . The applicant 's counsel , without consulting his client , pointed out that the applicant 's brother was present , and the court agreed to make use of him , if need be . The applicant 's brother was never requested to translate any statement during the course of the hearing .

The applicant was sentenced to a total of DATE imprisonment and disqualified from being a company director for DATE .

On DATE the applicant applied to ORG seeking leave to appeal against sentence . In his application , the applicant was represented by the same legal team that had defended him at trial . In a letter to ORG , the applicant stated that he had been sentenced on the basis , which was incorrect , that he had pleaded guilty to frauds totalling GBP CARDINAL,CARDINAL and that the real amount of the fraud was GBP CARDINAL . The applicant did not maintain in his application that he had been unable to understand the proceedings at the trial or to communicate effectively in court ; nor did he allege in his application that he should have been provided with the services of an interpreter .

Leave to appeal was refused by the Single Judge on DATE and by the full ORG on DATE .

On DATE the applicant sought advice from the President of ORG on what action to take against his defence lawyers but did not receive any reply .

On DATE the applicant wrote to the Home Secretary , admitting that he had not declared GBP CARDINAL per week for staff wages due to the recession , and claiming that the real amount of the fraud was GBP CARDINAL and not GBP CARDINAL . He further complained that his counsel had failed to secure him the services of an interpreter at the trial on DATE and that this was of “ paramount importance ” for the purposes of the plea in mitigation . The applicant further observed that his ORG had misled the trial court by stating that his brother would be able to act as a translator , when his brother was unable either to speak or write in LANGUAGE .

The Home Secretary forwarded the applicant 's case to ORG ( “ the Commission ” ) . The applicant himself applied to the Commission , claiming inter alia that his lawyers should not have allowed him to plead guilty to the GBP CARDINAL,CARDINAL fraud , as he had only intended to accept guilt in respect of GBP CARDINAL . Furthermore , his lawyers had failed to ensure the presence of an interpreter both at conferences in preparation for the trial and in court . He maintained that his brother did not speak LANGUAGE well enough and that he had not understood the charges or the legal process . He complained about his counsel , who , he claimed , did not understand NORP but nevertheless did not insist on an interpreter being present at conferences ; renounced the presence of a professional interpreter in court ; did not understand the case ; told him to plead guilty only at the trial , without explaining the consequences to him in detail and gave the court the wrong information that the applicant had accepted liability in respect of the total amount .

The Commission noted that it had interviewed the applicant via an NORP interpreter and that it was apparent from telephone conversations between the applicant and the ORG that he did not have a very good command of LANGUAGE . The Commission observed that the applicant 's solicitor and counsel at trial did not accept that he lacked understanding either of the language or of the nature of the case against him . However , the Commission went on to note , inter alia , that

a ) in the course of the proceedings the applicant 's solicitor had stated in counsel 's brief that the applicant “ has a grasp of LANGUAGE but is not very easily understood . At times , he says he wants an interpreter ” ;

b ) the trial judge had seen fit to order the presence of an interpreter ;

c ) on appeal , the applicant 's junior counsel had informed the court that the applicant did not have much of a command of LANGUAGE ;

d ) the applicant 's counsel told the ORG that he would have wanted an interpreter present had there been a trial on the basis of a not guilty plea .

The Commission accepted that the applicant would have been able to understand the generality of the prosecution case but expressed the view that an interpreter ought to have been present when the prosecution case was explained to the applicant by his own representatives , given the complex nature of the evidence . Furthermore , he should have had the benefit of an interpreter when it came to considering the matter of changing his plea to guilty .

The Commission also accepted that the applicant 's brother was not an adequate interpreter , but considered that the lack of an interpreter at the trial was “ of much less significance than it was at the earlier stage ” . Further , the ORG found that too little time had been spent by the applicant 's lawyers explaining the case to him .

The Commission concluded that there were grounds for finding that the plea was uninformed in that the applicant had not fully understood the nature of the case to which he was pleading , partly because of his inadequate understanding of the language , and because of the inadequate explanation of the case given to him by his legal representatives .

NORP However , the Commission noted that ORG no longer had the power to allow an appeal against conviction if it did not think the conviction was unsafe but was dissatisfied in some way with the trial process , since there was no longer room for the separate notion of an “ unsatisfactory ” conviction . In the view of the Commission , whilst the applicant 's conviction was arguably unsatisfactory , it could not be said to be unsafe . Since the Commission did not consider that there was a real possibility that , if referred to ORG , the conviction and sentence would not be upheld , it decided not to make such reference .

In the meantime , the applicant was released from prison on licence on DATE .

The leading domestic authorities on the provision of a interpreter are the cases of PERSON ( [ DATE ] CARDINAL CrAppR CARDINAL ) and ORG v the ORG ( [ DATE ] CARDINAL WLR CARDINAL ) .

In PERSON Reading CJ , speaking on behalf of ORG , set out the following statement of principle ( pp . CARDINAL ) :

“ We have come to the conclusion that the safer , and therefore the wiser , course , when the foreigner accused is defended by counsel , is that the evidence should be interpreted to him , except when he or counsel on his behalf expresses a wish to dispense with the translation , and the judge thinks fit to permit the omission ; the judge should not permit it unless he is of the opinion that by reason of what has passed before the trial , the accused substantially understands the evidence to be given and the case to be made against him at the trial . To follow this practice may be inconvenient in some cases , and may cause some further expenditure of time ; but such a procedure is more in consonance with that scrupulous care of the accused 's interest which has distinguished the administration of justice in our criminal courts , and therefore it is better to adopt it . ”

Lord Reading 's judgment in PERSON was reinforced in the more recent case of ORG v the ORG in DATE . Speaking on behalf of ORG , Lord PERSON stated :

“ Their Lordships have no doubt that the course advocated by Lord Reading CJ in PERSON v PERSON is a highly desirable one and should be followed wherever a foreign defendant , not fully conversant with the language of the proceedings , is represented by counsel . ”


Violation of Art. 6-1;Not necessary to examine Art. 6-1 (independence and impartiality of the court);Violation of Art. 14+P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award (global)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in ORG .

In DATE the applicant was called up for military service . However , because of his father ’s opposition to the collectivisation of farmland , he was not allowed to undergo military training . Instead , he was assigned to a number of military units , including the ORG unit , as a building worker . His military service ended in DATE .

In DATE ORG , an administrative body grouping together the military units specially created for conscripts who were barred from military training , was abolished .

Law no . CARDINAL of CARDINAL DATE ( “ Law no . DATE ” ) recognised as forced labour the work performed in the military units coming under the authority of ORG , and provided for compensatory measures including a DATE allowance , free medical treatment and exemption from the television licence fee .

On DATE the applicant applied to the county pensions and social insurance fund ( “ the county fund ” ) , claiming the benefits available under PERSON no . DATE . In a decision of DATE the county fund refused the application on the ground that the applicant had not performed his military service in a military unit coming under the authority of ORG .

On DATE the applicant brought proceedings against the county fund before ORG , seeking to have the decision of DATE set aside and to be recognised as having performed forced labour during his military service .

In a judgment of DATE ORG found in the applicant ’s favour and ordered the county fund to issue a new decision awarding him the benefits provided for by PERSON no . DATE . On the basis of the entries in the applicant ’s military service record book , ORG concluded that he had worked on various building projects with the ORG military unit and had been discharged from service as an “ untrained combat soldier ” .

NORP The county fund appealed to ORG and ORG ( “ the ORG ” ) .

At the applicant ’s request , the ORG referred to ORG an objection raised by the applicant as to the constitutionality of LAW no . DATE . The applicant alleged that , in making a distinction between persons who had performed the same kind of forced labour during their military service , the provision in question was in breach of LAW and of LAW . He considered this difference in treatment to be unjustified since it was based solely on the hierarchical structure to which the conscript ’s military unit had belonged .

ORG dismissed the objection in a judgment of DATE , which included the following passage :

“ The definition of the categories of persons who are eligible for certain measures in compensation for the duress and hardship they underwent in the past ... is a matter for the legislature alone , provided that no privileges or discrimination are engendered between persons belonging to the same category and in identical situations . LAW no . DATE does not give rise to any privileges or discrimination contrary to LAW . ”

In a judgment of DATE in which it found in favour of the county fund , the ORG quashed the judgment of ORG and remitted the case for further preparation , with a view to determining whether the ORG military unit had been attached to ORG .

In a letter of DATE in reply to a request for information made by ORG , the PERSON military unit , which kept the army archives , stated that the ORG military unit did not feature on the list of units attached to ORG . It added that , in accordance with the rules on the implementation of PERSON no . DATE , the list had been drawn up by ORG , which had made it available to the military unit as a “ working tool ” .

On DATE the national archives of ORG informed ORG that the ORG military unit had not been attached to ORG .

On the basis of the information provided by the PERSON military unit and the national archives , and taking the view that PERSON no . DATE applied only to conscripts who had worked in military units coming under the authority of ORG , ORG dismissed the applicant ’s claims in a judgment of DATE .

The applicant appealed to the ORG . In his submission , the PERSON military unit , by confining itself to reproducing the information contained in the list drawn up by ORG and omitting to check the recruitment file , which contained proof of the work carried out , had not adequately replied to the request for information from ORG .

The applicant further contested the distinction made by the PERSON between those conscripts who had performed forced labour in military units answerable to ORG and other conscripts who , although they had performed the same kind of work , were not entitled to benefits under the PERSON solely because their military units had not come under the authority of ORG . He argued that , in any event , the ORG , in a judgment of DATE , had recognised a former conscript in a similar situation to his own as being covered by the provisions of Law no . DATE .

In a final judgment of CARDINAL DATE , the ORG dismissed the appeal and upheld the judgment of ORG on the following grounds :

“ In accordance with PERSON no . DATE , persons who performed their military service DATE in the work brigades under the authority of ORG are covered by the provisions of that PERSON .

It follows that the decisive criterion for eligibility under the PERSON is not the kind of work performed within the military unit , for example building work , but whether or not the unit in question came under the authority of ORG , within which work brigades were established .

As a result , given the information provided by the PERSON military unit in its letter stating that the unit to which the applicant belonged was not on the list of units answerable to ORG , ORG was correct in ruling that the conditions for application of the PERSON were not met in the instant case and in dismissing the appeal accordingly . ”

“ Any NORP citizen who performed military service DATE in the work brigades coming under the authority of ORG shall be covered by the provisions of this PERSON . ”

“ The persons referred to in LAW shall be entitled to a DATE allowance ... ”

“ The persons referred to in LAW ... shall also be entitled to ... :

– free medical treatment and medicines ... ;

– exemption from the television licence fee ... ”

“ ( CARDINAL ) The benefits referred to in the preceding sections shall be awarded on request , regard being had to the entries in the individual ’s military service record book or certificates issued by the county military headquarters or the PERSON military unit .

( CARDINAL ) Requests for these benefits shall be addressed to the county pensions and social insurance funds . ”

“ For the purposes of the award of the benefits provided for by this PERSON , the National Pensions and ORG may request the national archives ... to compile , on the basis of the documents at its disposal , a list of the work brigades under the authority of ORG . ”

In a case similar to the present one , a former conscript who had performed forced labour in a military unit which did not come under the authority of ORG claimed eligibility under the provisions of PERSON no . DATE . When the county pension fund dismissed his claim on the ground that the PERSON applied only to conscripts in the work brigades , he appealed to ORG , which found in his favour .

Following an appeal by the county fund , the ORG upheld ORG judgment on the following grounds :

“ As the fact that the claimant was subjected to forced labour is not in dispute ... , there is no justification for withholding the benefits in question . To do so would be to create an inequitable situation , denying compensation to persons who performed military service in identical conditions and who , for purely formal reasons relating solely to the hierarchical structure to which their military units belonged , would thus be subjected to different treatment of a clearly discriminatory nature . ”

NORP In a number of other judgments , including those of CARDINAL DATE , DATE , DATE and DATE , DATE and DATE , DATE , CARDINAL , CARDINAL , DATE and DATE , CARDINAL , DATE , DATE and DATE and CARDINAL DATE , and CARDINAL May and DATE , the ORG delivered rulings to the same effect as that referred to above .

NORP However , in other judgments , and in particular those delivered on CARDINAL and DATE , CARDINAL DATE and CARDINAL , DATE and DATE , CARDINAL and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE , CARDINAL and DATE and DATE , and CARDINAL and DATE and CARDINAL DATE , it ruled to the opposite effect , holding that conscripts who had not performed their military service in a military unit coming under the authority of ORG were not covered by the provisions of PERSON no . DATE .