Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

CARDINAL .

In DATE the applicant bought a car ( ORG CARDINALD ) from a person who lived in GPE . His intention was to use it as a taxi . Since the car was already DATE , the applicant was unable to have it directly registered in GPE . Therefore , he first had the car registered in GPE , in his relative ’s name , and only registered the car in GPE in DATE , which was when the latter State adopted legislation making this arrangement possible .

On DATE GPE issued a decision stating that the applicant , being a taxi driver since DATE , would from now on be using the car at issue as a taxi .

On DATE the police seized the applicant ’s car because of a customs violation ( carinski prekršaj ) .

On DATE ORG ( ORG za carinske prekršaje ORG ) discontinued the misdemeanour proceedings ( prekšajni postupak ) brought against the applicant , but decided nevertheless to confiscate his vehicle . ORG explained that it was convinced that the applicant had committed the offence in question , i.e. that he had accepted to import a vehicle which could not have legally been imported and had not informed the competent customs authorities thereof , but noted that the misdemeanour proceedings could not be continued in view of the applicable “ relative prescription ” period ( relativna zastarelost ) . The confiscation , however , was warranted since no “ absolute prescription ” ( apsolutna zastarelost ) had occurred ( see paragraphs CARDINAL below ) .

On DATE the applicant filed an appeal against this decision , noting that ORG had failed to properly establish the relevant facts , and had also come to “ an erroneous legal conclusion ” leading to the ultimate confiscation of his car .

On DATE ORG ( ORG finansija ) rejected this appeal . In so doing , it stated , inter alia , that absolute prescription had not occurred and that the impugned confiscation was thus lawful .

On an unspecified date thereafter the ORG apparently sold the applicant ’s car to a third person . The money thus obtained was deposited with ORG .

On DATE the applicant filed an appeal on points of law ( zahtev za vanredno preispitivanje pravosnažnog rešenja ) , re - stating his earlier arguments .

On DATE ORG ( PERSON ) rejected the applicant ’s appeal on points of law and upheld the impugned decision of ORG , as well as its reasoning .

The Government disagreed with some of the facts provided by the applicant and furnished additional details , which may be summarised as follows .

The applicant bought a second - hand car ( ORG CARDINALD ) in DATE from a person who lived in GPE . The car ’s former owner returned the licence plates to the competent NORP authorities .

At that time and given the vehicle age limitation requirement , the car in question could not have been legally imported to GPE . In any event , even if this were possible , the applicant would have had to pay a significant sum for customs duties and taxes , i.e. a total of PERCENT of the catalogue value of the car .

At some point in DATE the Government announced that it was considering a decree which would make it possible to import cars from CARDINAL of the former NORP republics free from any duties or taxes , and irrespective of the vehicle ’s age . This decree was ultimately adopted in DATE ( see paragraph CARDINAL below ) .

The applicant then used forged documents to prove that the car had been registered in GPE , in another person ’s name , for DATE . Thus he secured the enjoyment of the benefits provided by the said decree and succeeded in registering the car in GPE on DATE .

On DATE ORG ( PERSON ) in GPE found the applicant guilty of having committed the crime of securing official certification of false information ( navođenje na overavanje neistinitog sadržaja ) . In particular , ORG established that the applicant had submitted a forged document , i.e. a false NORP - Herzegovinian traffic permit , meant to indicate that the car in question was being imported from GPE , rather than GPE , on the basis of which the competent NORP authorities had issued him with a NORP traffic permit ( saobraćajna dozvola ) . The applicant , who had paid MONEY ( DEM ) for the car , was sentenced to CARDINAL months’ imprisonment , suspended for DATE .

On DATE ORG ( Okružni sud ) in GPE upheld this judgment on appeal , and it thereby became final .

Article CARDINAL provides that customs - related misdemeanour proceedings may not be instituted if DATE have elapsed as of the date of commission of the offence in question ( relative prescription ) .

Article CARDINAL § CARDINAL provides , inter alia , that a vehicle used for the commission of a customs - related offence may be confiscated even when , for legal reasons , no proceedings may be brought against the perpetrator , except in cases of absolute prescription .

Article CARDINAL provides , inter alia , that even if misdemeanour proceedings have been instituted absolute prescription shall occur when twice the time required for relative prescription has elapsed .

ORG no . CARDINAL of CARDINAL DATE published an amendment to this LAW , whereby , inter alia , LAW DATE was repealed in its entirety .

NORP However , LAW DATE , as amended , substantively corresponds to LAW of the former LAW DATE .

In DATE and CARDINAL two separate decrees were adopted by ORG ( ORG o registraciji vozila iz bivših republika SFRJ koje nisu u sastavu Savezne Republike Jugoslavije , published in OG FRY no . CARDINAL/CARDINAL , and ORG o posebnoj naknadi za registraciju određenih PERSON , published in OG RS nos . CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL . ) They set out the requirements for the registration of certain vehicles in GPE , including those registered in CARDINAL of the former NORP republics .

Article CARDINAL § CARDINAL provides , inter alia , that objects used for the commission of a crime may be confiscated if they belong to the perpetrator .

Articles CARDINAL provide , inter alia , that any pecuniary benefit obtained as a result of the commission of a crime shall be confiscated . The pecuniary benefit in question may include money , physical objects and any other valuables . Should confiscation in kind be impossible , the perpetrator may be obliged to pay a certain sum which shall be proportionate to his or her illegal gains .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The applicants were born in DATE and DATE respectively and live in GPE . They are the parents of Mr GPE GPE , aged DATE , who died in a police station in GPE on DATE , as a result of having been beaten by QUANTITY police officers .

On DATE a certain GPE filed a complaint with the police maintaining that a man had threatened his son and taken his money .

On DATE GPE saw PERSON on a bus and told the bus driver to go to the police station . Once in front of the police station , GPE asked the police officers to arrest PERSON , maintaining that the latter was the person who had threatened his son . Subsequently , at TIME arrested on suspicion of having committed robbery ( gasp ) .

On DATE at around TIME PERSON was found dead at the NORP police station .

On DATE , at TIME a “ scene of incident and examination of the corpse ” report was drafted and signed by the PERSON public prosecutor , a medical expert , the director of the PERSON police headquarters and CARDINAL other persons . According to the report , there was no sign of ill - treatment or bullet wound on GPE PERSON ’s body . The medical expert concluded that an autopsy was necessary to discover the cause of death . The report also contained details concerning the detention conditions , according to which the cell where PERSON had been found dead had not been cleaned for DATE . There were several cigarette butts on the floor and spider webs on the walls . Furthermore , a sketch plan of the cell where PERSON was found dead was drawn .

On DATE , the PERSON public prosecutor took statements from the police officers who were on duty . The officers all contended that PERSON had not been tortured or subjected to illtreatment while in custody and that they had found him dead in his cell when they had gone there to offer him a cup of tea .

On DATE an autopsy was carried out on PERSON body . In the autopsy report drafted on DATE and signed by CARDINAL doctors from the hospital at ORG , the cause of death was identified as cardiac failure . The forensic experts found a haemorrhage of QUANTITY in the left scapular region . They nevertheless considered that the haemorrhage had not directly caused PERSON death .

On DATE the PERSON public prosecutor issued a decision not to prosecute in respect of ORG death . Basing his decision on the autopsy report of DATE , the public prosecutor noted that the cause of death was not the haemorrhage .

On DATE the first applicant , PERSON , filed an objection with ORG against the decision of CARDINAL DATE . He maintained that the content of the autopsy report was inadequate as , inter alia , it did not specify how the haemorrhage in PERSON body could have been caused . He further contended that the public prosecutor had questioned only the police officers before rendering his decision . PERSON finally submitted that his son had been tortured to death and that the decision not to prosecute constituted a violation of his right to life .

On CARDINAL DATE ORG requested ORG to hear evidence from the first applicant and a witness and to conduct an examination of the case .

On DATE the ORG heard evidence from the first applicant and CARDINAL witnesses , GPE and GPE The court then ordered ORG to draft a report in order to determine whether the haemorrhage in PERSON body could have been caused by illtreatment and whether there was a link between the haemorrhage and PERSON death .

On DATE a report was drafted and signed by CARDINAL forensic medicine experts , including the director of ORG . Having examined the autopsy report , the experts noted that PERSON had suffered from a heart condition . They further considered that the haemorrhage had been caused by a direct trauma to the scapular region . The experts concluded that the stress caused by the trauma and the material conditions in which he had been detained had aggravated PERSON heart condition and had given rise to a cardiac failure .

On DATE ORG annulled the decision not to prosecute and decided to initiate criminal proceedings against the CARDINAL police officers who had signed the documents concerning PERSON arrest on DATE . In its decision , the court noted that GPE GPE ’s death might have ocurred as a result of torture inflicted on him and it therefore considered that criminal proceedings should be initiated .

On DATE the ORG public prosecutor filed a bill of indictment with ORG charging CARDINAL police officers with causing death unintentionally as a result of an act of violence , under Articles CARDINAL § CARDINAL and CARDINAL of the former Criminal Code .

On DATE ORG decided to transfer the case to ORG on the ground of public security .

On DATE , upon the request of ORG , ORG heard evidence from one of the accused police officers , PERSON , who denied the allegations against him .

On DATE , at the request of ORG , ORG heard evidence from the persons who had alleged that PERSON had committed robbery .

On DATE ORG heard evidence from CARDINAL of the accused police officers , PERSON and GPE , who denied the allegations against them and contended that PERSON had died as a result of a heart attack .

On DATE ORG heard evidence from the first applicant , GPE and GPE The court postponed the hearing as a third witness was not present .

On DATE ORG heard evidence from the third witness .

On DATE , at the second hearing before ORG , the first applicant joined the proceedings as a civil party seeking redress for his pecuniary and non - pecuniary loss ( müdahil ) .

On DATE ORG heard evidence from one of the accused officers , GPE , who contended that he had not inflicted ill - treatment on PERSON .

On DATE , at the request of ORG , ORG heard evidence from a doctor who had worked at a medical centre close to the NORP police station at the time of the incident . The doctor maintained that he had been called to the police station by police officers in order to examine PERSON , but that when he arrived there , PERSON had already died .

DATE and DATE ORG postponed hearings due to the absence of CARDINAL of the accused , police chief GPE , whose statements had to be taken .

On DATE the first - instance court ordered ORG detention in his absence .

On DATE the second applicant made a request to ORG to join the proceedings as a civil party , seeking redress for her pecuniary and non - pecuniary loss . The first - instance court did not take a decision regarding the applicant ’s request .

On DATE ORG made statements before ORG and denied the allegation that PERSON had died as a result of ill - treatment inflicted on him . ORG maintained that PERSON had been in custody on account of a simple accusation and that there had been no reason for inflicting ill - treatment on him . On DATE , the first - instance court reversed its order to detain GPE

On DATE and DATE , upon the request of ORG , ORG and ORG once again heard evidence from GPE , GPE and GPE , who reiterated their previous statements .

On DATE ORG gave its judgment in the case . In the judgment , the assize court noted that PERSON had retired from public service and the other accused were serving as police officers . ORG acquitted GPE , GPE and GPE of the charges against them , holding that there was insufficient evidence to convict them since they had left the police station at TIME on DATE and since the applicant had visited PERSON a number of times up until TIME on DATE . The court considered that PERSON , PERSON , PERSON and GPE , the officers who had been on duty TIME on DATE and CARDINAL a.m. on DATE , had caused GPE GPE ’s death unintentionally by beating him , for reasons that could not be determined , and convicted them . Noting that the death had occurred as a result of the ORG acts combined with a circumstance that had existed prior to the act which had not been known to the officers , namely ORG heart condition , the court sentenced PERSON , PERSON , PERSON and GPE to DATE imprisonment pursuant to Articles CARDINAL and CARDINAL § CARDINAL of the former LAW . The court did not apply LAW of the former LAW applicable at the time of the commission of the offence as it was unable to establish that the convicted officers had beaten PERSON with a view to extracting a confession of guilt . In its judgment , the court noted that PERSON had been beaten by the convicted police officers and that he had died as a result of the stress caused by this trauma . Taking into account the fact that the actual offender who had caused the trauma to GPE PERSON ’s head could not be identified , the assize court reduced the police ORG prison sentences to DATE and DATE pursuant to LAW . Having regard to the fact that the officers had committed an offence while on duty , the firstinstance court increased the sentence to DATE and DATE pursuant to Article CARDINAL of the former Criminal Code . The assize court finally reduced the sentence to DATE , DATE and DATE of imprisonment for each convict pursuant to LAW , having regard to the fact that some of the convicted police ORG statements had been of help to the authorities during the investigation and the criminal proceedings in establishing . The first - instance court held that the applicants’ right to redress for the pecuniary and non - pecuniary damage that they had suffered should be reserved .

The first applicant , through the lawyer who had represented him during the proceedings before the assize court , and the convicted police officers appealed .

In his appeal , the first applicant ’s lawyer submitted that the application of LAW of the former LAW and the lack of severity of the prison sentences rendered the first - instance court ’s judgment ineffective , and thus constituted a violation of the provisions of LAW , ORG and LAW or Punishment .

On DATE ORG quashed the judgment of DATE on procedural grounds . The court held that ORG had failed to take a decision in respect of the second applicant ’s request to join the proceedings . The case file was then remitted to ORG .

On DATE the first - instance court decided to allow the second applicant ’s request to join the proceedings as a civil party .

On DATE the ORG heard evidence from the accused police officers , who denied the allegations against them . On DATE , the first - instance court once again convicted PERSON , PERSON , PERSON and GPE as charged and sentenced each of DATE , DATE and CARDINAL days’ imprisonment and reserved the applicants’ right to redress for the pecuniary and non - pecuniary damage that they had suffered .

The applicants , through their lawyer , appealed . They alleged that their son had been killed as a result of torture inflicted on him and that the first - instance court had failed to interpret the facts of the case correctly . They contended that the police officers should have been convicted of homicide as a result of torture under Articles CARDINAL and CARDINAL § CARDINAL of the former Criminal Code in accordance with LAW and the provisions of LAW and LAW . The applicants finally claimed that the convicted officers should have been debarred from employment in public service .

On DATE ORG dismissed the applicants’ appeal and upheld the judgment of DATE .

On DATE the new Criminal Code ( Law no . DATE ) entered into force .

Subsequently , PERSON , PERSON and GPE filed requests with ORG asking that their convictions be revised in the light of the provisions of LAW . They maintained that their acts should be considered as “ inflicting minor injury ” . They further submitted that they had been debarred from public service . PERSON , PERSON and GPE finally noted that the execution of their prison sentences had been suspended pursuant to PERSON no . DATE , which governed conditional release , suspension of proceedings and execution of sentences in respect of offences committed before DATE .

On DATE ORG reviewed the sentences of PERSON , PERSON and GPE and decided not to reverse its judgment of DATE .

A.A. , PERSON and GPE appealed against the judgment of DATE .

According to the information in the case file based on the latest submissions by the parties , the case is still pending before ORG .

The relevant provisions of the former Criminal Code , in force at the time of the death of the applicants’ son , read as follows :

“ Any ... public official who , in order to extract a confession of guilt in respect of a criminal offence , tortures or ill - treats any person , engages in inhuman conduct or violates human dignity , shall be punished by DATE imprisonment and disqualified from holding public office temporarily or for life .

Where such conduct causes death , the sentence incurred under LAW ( ... ) shall be increased by CARDINAL . ”

“ Any person who intentionally kills another shall be sentenced to a term of imprisonment of CARDINAL to thirty years . ”

“ Where death results from an act of violence inflicted without the intention to kill the victim , ( ... ) a sentence of DATE imprisonment shall be imposed on the offender .

If the death occurs as a result of the offender ’s act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate , ( ... ) a sentence of a minimum of DATE of imprisonment shall be imposed on the offender . ”

“ If a public official commits an offence while on duty ... the sentence stipulated for that offence shall be increased by CARDINAL . ”

“ If the offence proscribed by LAW ( ... ) is committed by CARDINAL or more persons and if it is not established at the trial which CARDINAL of those persons caused the death , the prison sentence to be imposed on any of the offenders is not CARDINAL and not CARDINAL of the maximum prison sentence stipulated in the relevant provision of LAW ( ... ) ”

“ If a court considers that , besides the mitigating statutory excuses , there are mitigating circumstances in favour of reducing the sentence imposed on an offender , ( ... ) the prison sentences shall be reduced by CARDINAL . ”

According to PERSON no . DATE , execution of sentences in respect of offences committed before DATE could be suspended if no crime of the same or a more serious kind was committed by the offender within DATE . LAW a ) of LAW no . DATE stipulated that execution of sentences in respect of the offence proscribed by , inter alia , LAW could not be suspended .


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect)

DATE the GPE carried out a number of atmospheric tests of nuclear weapons in LOC and at GPE , GPE , involving over CARDINAL servicemen . Among these tests were the “ LOC ” and “ Grapple Z ” series of CARDINAL detonations at LOC in LOC ( DATE ) of weapons many times more powerful than those discharged at GPE and GPE .

During the DATE Island tests , service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until TIME after the blast .

The applicant alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes . The Government denied this and stated that it was believed at the time of the tests , and was the case , that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line - up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast .

While the applicant ’s father was serving as a catering assistant in ORG , he was present at DATE Island during CARDINAL nuclear tests in DATE and DATE . He also participated in the clean - up programme following the tests .

The applicant was born in DATE . In or DATE she was diagnosed as having leukaemia , a cancerous disease of the organs which manufacture blood . Her records of admission to hospital state , under the heading “ Summary of Possible Causative Factors ” , “ Father – Radiation exposure ” .

The applicant received chemotherapy treatment which lasted until she was DATE . Because of her illness and associated treatment she missed CARDINAL of her primary school education and was unable to participate in sports or other normal childhood activities .

NORP In DATE the applicant became aware of the contents of a report prepared by FAC ( “ GPE ) indicating a high incidence of cancers including leukaemia in the children of DATE Island veterans . The applicant is a member of the BNTVA .

She still has regular medical check - ups and is afraid to have children of her own in case they are born with a genetic predisposition to leukaemia .

In DATE an ORG , chaired by Sir ORG , was set up in GPE to investigate reports of an abnormally high number of children contracting leukaemia in the area around the nuclear power reactor at PERSON ( formerly called PERSON ) in northern GPE . The ORG confirmed that childhood leukaemia was more common in this area than normal , but was not able to determine the reason for this . CARDINAL of the members of the ORG , Dr PERSON , went on to conduct CARDINAL studies into the phenomenon . The third , published on CARDINAL DATE ( “ the ORG ” ) , found a statistical association between the incidence of leukaemia in children from the town of GPE , near PERSON , and relatively high recorded doses of external whole - body radiation received by their fathers employed at the nuclear power plant prior to conception .

Following the publication of this report , CARDINAL cases were brought against the authority responsible for the Sellafield reactor by plaintiffs who had contracted leukaemia and non - Hodgkin ’s lymphoma respectively , claiming that their ORG employment at ORG had caused their illnesses . The CARDINAL cases were heard concurrently in ORG , GPE , on DATE between DATE and DATE . Over CARDINAL expert witnesses gave oral evidence before the court and CARDINAL written reports were submitted , primarily directed at the question whether the statistical association found by Dr PERSON could be relied upon and was directly causal , as claimed by the plaintiffs .

Judgment was given by PERSON NORP on DATE .

He found , inter alia , that ORG was “ a good study , well carried out and presented ” . However , certain technical criticisms which had been made of it were valid so as to diminish confidence in its conclusions and underline the need to seek confirmation from other independent studies before relying on it . He did , however , find that the evidence bore out a strong prima facie association between paternal preconceptional irradiation and childhood leukaemia in GPE , although considerable reserve was necessary before it could be concluded that there was a causal link .

Although the judge was content to assume that there was a heritable component to the plaintiffs’ diseases , he considered that this was very small . He placed particular reliance on studies of the children of survivors of the GPE and GPE bombings , which did not show any significant increase in leukaemia or non - Hodgkin ’s lymphoma , and were therefore quite inconsistent with the PERSON hypothesis . CARDINAL of the defendant ’s witnesses , Sir PERSON , had referred to research emphasising the role of infection in causing childhood leukaemia , particularly in areas where unusual population mixing had occurred , as was the case in GPE , which had a very mobile population of high socio - economic class situated in a remote rural area . The judge found that a theory of causation based on such factors , combined with chance , was no less plausible than the PERSON hypothesis .

In conclusion , he held that , “ on the evidence before me , the scales tilt decisively in favour of the defendants , and the plaintiffs , therefore , have failed to satisfy me on the balance of probabilities that paternal preconceptional radiation was a material contributory cause of the Seascale excess or , it must follow , of [ their diseases ] ” ( PERSON v. ORG ; ORG v. ORG [ DATE ] CARDINAL Medical Law Reports CARDINAL ; and see also ‘ Childhood leukaemia and PERSON : the legal ORG , vol . CARDINAL , no . CARDINAL , pp . CARDINAL ) .

On DATE GPE lodged with the Secretary General of ORG the following declaration :

“ … in accordance with the provisions of LAW , signed at GPE on the CARDINALth of DATE , … the Government of GPE and GPE recognise , in respect of GPE and GPE only … , for the period beginning on DATE , and ending on DATE , the competence of ORG to receive petitions submitted to the Secretary General of ORG , subsequently to DATE , by any person , non - governmental organisation or group of individuals claiming , in relation to any act or decision occurring or any facts or events arising subsequently to DATE , to be the victim of a violation of the rights set forth in that Convention and in the LAW thereto … ”

A declaration under LAW , recognising the ORG ’s jurisdiction subject to similar conditions , was filed on DATE . Both declarations have been renewed on several occasions subsequently .


The applicant , ORG ( PERSON ) , is a juristic person whose seat is in GPE , GPE . It is represented before ORG , a lawyer practising in GPE , GPE .

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

On DATE ORG , acting through its legal representative , lodged with ORG a claim for restitution of castle PERSON , its outbuildings and surrounding estate together with related movables and works of article It based its claim on sections DATE of the Denationalisation Act DATE . The castle and its estate are located on the territory of DATE GPE and were purchased in DATE by ORG . They were nationalized after the Second World War by NORP authorities . In DATE , the castle and part of the estate were classified as NORP cultural and natural monuments .

On DATE ORG dismissed the claim for restitution on the ground that section CARDINAL of the Denationalisation Act DATE gave the right to restitution of expropriated property to “ churches and other religious communities , their institutions and orders , operating on the territory of GPE ” on DATE , the date of the entry into force of the LAW . It was generally known , however , that at that time ORG exercised its activities in GPE . ORG was therefore not entitled to restitution . Further , ORG separated and transferred a part of the claim concerning a part of the surrounding land and certain movables to GPE as the competent authority .

On DATE the applicant instituted administrative litigation with ORG , asserting that the claim for the restitution of the property emanated from ORG as part of ORG and the catholic religious community . It was clear that , regardless of its internal organisation , ORG was entitled to restitution under LAW DATE . Moreover , the NORP parish , located on NORP territory , belonged , in ecclesiastical administrative terms , to ORG . This meant that ORG was “ operating on NORP territory ” within the meaning of section CARDINAL of LAW DATE and was therefore entitled to restitution .

By a judgment of DATE , ORG rejected the applicant 's claim and upheld the decision of ORG , holding that section CARDINAL of LAW DATE , with special reference to the concept of “ churches and other religious communities , their institutions and orders , operating on NORP territory ” , should be interpreted narrowly .

It transpired from that provision that it was not the universal ORG but its constituent juristic persons operating on the territory of GPE and registered as religious communities under LAW in GPE DATE that were entitled to restitution . ORG , as a much wider entity , did not therefore satisfy this criterion .

ORG also rejected ORG argument that the presence on NORP territory of a single parish belonging to the applicant in accordance with the internal organisation of ORG justified its claim to be operating on NORP territory . It held that this was not sufficient for the applicant to qualify as a NORP juristic person , since the greater part of its activities took place in another ORG where its seat was located and to the jurisdiction of which it was subject .

On DATE the applicant lodged a constitutional appeal with ORG , alleging that ORG was a part of ORG and that its internal organisation was regulated by the Code of canon law ( ORG iuris canonici ) , promulgated on DATE . According to the provisions of this code , the supreme authority regulating the ownership of property was vested in the Pope . Since DATE NORP LAW provided for the separation of ORG and ORG and recognised their equality , this implied recognition of the internal organisation of ORG under the Code of canon law . There can consequently be no doubt that ORG was entitled to restitution . The decision of ORG , moreover , violated the right to own property , as protected by LAW .

On DATE ORG declared the applicant 's constitutional appeal inadmissible , on the ground that it had no jurisdiction to review application of the law by ordinary courts . It found that the applicant essentially contested ORG refusal to take into account the Code of canon law in determining the applicant 's right to restitution . ORG interpretation of the law was reasoned and there was no indication that its conclusions were arbitrary or in breach of human rights and fundamental freedoms . The decision was served on the applicant 's lawyer on DATE .

The LAW ( PERSON , ORG no . CARDINAL )

“ The ORG and religious communities shall be separate . Religious communities shall enjoy equal rights ; they shall pursue their activities freely . ”

“ The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic , social and environmental function . ( ... ) ”

The Denationalisation Act DATE ( Zakon o denacionalizaciji , ORG no . CARDINAL , with amendments )

At the time of the adoption of the LAW , its sections CARDINAL , DATE , DATE , DATE and CARDINAL limited the right to restitution of expropriated property to natural persons . The only exception were churches and religious communities , which were expressly recognised as beneficiaries under section CARDINAL of the Act ( see below ) . By ORG decision of DATE ( see below ) , the right to restitution was extended to all domestic juristic persons .

The conditions and the mode of denationalisation are determined by this LAW . ”

“ The right to recovery of property is hereby given to churches and other religious communities , their institutions and orders operating on the territory of GPE at the time of the coming into effect of this LAW . ”

ORG shall decide on denationalisation of objects specified in ( ... ) of this LAW ( ... ) ”

The Constitutional Court 's case - law

On DATE ORG adopted a decision in a case brought by CARDINAL legal persons ( not party to the proceedings in this case ) who challenged the constitutionality of several provisions of LAW DATE ( U - I-CARDINAL/CARDINAL ) . It declared that the restriction of the right to restitution to natural persons and only certain legal persons was unconstitutional . By altering the wording of sections CARDINAL , DATE , DATE , DATE and CARDINAL of the LAW , ORG extended the right to restitution to all NORP legal persons . It held that section CARDINAL thus acquired a new meaning . ORG reasoned that :

“ ... the provision of section DATE is no longer contrary to the LAW , because it does no longer have the function of providing a legislative basis for denationalisation claims of churches and other religious communities , their institutions and orders . With the annulment ( ... ) of the pertinent legislative provisions , this provision was given a different content . It only means that under this legislative provision the right to restitution of property is accorded only to those churches and other religious communities , their institutions and orders , that were operating on NORP territory at the time of the adoption of LAW CARDINAL ... ”


Violation of Art. 10;Violation of Art. 5-1;Remainder inadmissible;Costs and expenses (Convention proceedings) - claim dismissed

David Thór Björgvinsson;Wilhelmina Thomassen

The applicant was born in DATE and lives in GPE .

On DATE ORG ( arrondissementsrechtbank ) convicted CARDINAL accused , PERSON , PERSON H. , of arms trafficking . In the criminal investigation into the offences at issue , the GPE police had stated that an arsenal of weapons had been found by chance : the caretaker of a building situated on the GPE in GPE had contacted the police when water was leaking from CARDINAL of the flats in the building , whose occupants were absent . With the aid of CARDINAL locksmiths , the police had gained entry to the flat and in the subsequent search for the source of the leak , the weapons had been found .

The accused lodged an appeal against the judgment of ORG .

On DATE the DATE newspaper Sp!ts published CARDINAL articles , written by the applicant and his colleague PERSON , in which doubts were expressed about the amount of coincidence allegedly involved in the finding of the weapons . The article of DATE , entitled “ Chance Hit or PERSON ? ” ( “ PERSON of loepzuiver schot ? ” ) , quotes an unnamed policeman of the GPE force as commenting in respect of the flooding , “ That is what we made out of it . Sometimes you just need a breakthrough in an investigation ” ( “ Dat hebben we er maar van gemaakt . CARDINAL heb je net even een doorbraak nodig in je onderzoek ” ) .

In the proceedings on appeal against PERSON , PERSON H. , the applicant and PERSON were summonsed to appear as witnesses at the request of the defence . At the first hearing before ORG ( gerechtshof ) on DATE in the cases against PERSON and PERSON , the applicant – who was assisted by DATE stated inter alia that he knew that the policeman , whom he had quoted verbatim in the article of DATE , had been involved in a previous investigation against PERSON When the applicant was asked whether that policeman was also involved in the investigation of the flat or was aware of that investigation , he invoked his right of non - disclosure ( verschoningsrecht ) . Counsel for the defence argued that both the individual interest of the accused – on whom a custodial sentence had been imposed as a result of the investigation carried out by the police – and the interest of criminal justice in the GPE outweighed the applicant 's interest in not disclosing his source . The Advocate General also expressed as his opinion that the applicant could not invoke a right of non - disclosure . He stated in addition that the source , if his name was made known , had nothing to fear from either the police or the public prosecution service .

After having deliberated , ORG considered that , if the statement made by the police officer to the applicant was correct , this might affect the conviction of the accused . It also affected the integrity of the police and judicial authorities . For these reasons , ORG held that the applicant was to reply to the question whether his source had been involved in the investigation of the flat and had been aware of that investigation . The President of the court further reminded the applicant that the court was empowered to order his detention for failure to comply with a judicial order ( gijzeling ) . Upon this , the applicant replied that his source had both been aware of , and involved in , the investigation of the flat .

NORP Asked by counsel for the accused to reveal the identity of his source , the applicant once again invoked his right of non - disclosure . Counsel for the applicant submitted that he was justified in so doing , given that disclosing the identity of his source would render it impossible for the applicant to work as a journalist in the future since sources would no longer approach him . The interests of the journalist and of freedom of expression outweighed other interests . Moreover , as the criminal charges at issue concerned only arms trafficking and not , for example , a multiple homicide , it was disproportionate to require the applicant to name his source . It also went against the principle of subsidiarity , since there were other ways in which the identity of the source could be discovered .

NORP In reply , the Advocate General stated that journalists exposed obvious wrongs ( kennelijke misstanden ) in society . Where they chose to do so , they should also face the consequences . The applicant was the only witness who could clarify whether or not the CARDINAL accused had been wrongly convicted . In the present case , where official records , drawn up on oath of office ( ambtseed ) by police officers , and the integrity of the judicial authorities were at stake , the applicant must reveal the identity of his source . It could not be the case that , in order to trace this identity , every member of the GPE police force should be heard , bearing in mind that all officers in the case against PERSON had already been heard by the investigating judge ( rechter - commissaris ) .

Having deliberated , ORG decided that the applicant was to reveal the identity of his source , for the same reasons as it had held that he had to reply to the question of his source 's involvement in the investigation . The applicant invoked his right to remain silent ( zwijgrecht ) , upon which the court ordered his immediate detention for a maximum of DATE . No legal remedy lay against the decision to detain the applicant ( Article QUANTITY of LAW , “ ORG ” ) .

When questioned by counsel for the accused , the applicant 's colleague , PERSON , stated that she was aware of the identity of the source , but that she had never met him in person . Having regard to this last fact , as well as to the fact that the journalist who had had direct contact with the source – i.e. the applicant – had already been placed in detention , ORG considered that PERSON was not obliged to reveal the identity of the source .

The applicant was served with an unreasoned decision on DATE . On DATE he was handed a copy of the record of the hearing of CARDINAL DATE , containing the decisions made by ORG at that hearing and the reasons for them .

Late on DATE the applicant lodged a request with ORG to be released from detention . Prior to the examination of this request on DATE , the applicant was able to consult his lawyer only once , namely in TIME of DATE . Requests to visit the applicant on CARDINAL , DATE , DATE , ( TIME CARDINAL , DATE and DATE were refused . The request for release was dealt with by ORG in chambers ( raadkamer ) , by the same judges who had ordered his detention .

At the hearing in chambers on DATE , ORG reported that , following the applicant 's statements at the hearing on DATE , a police inspector had carried out an internal investigation , which had revealed that CARDINAL police officers had been involved in both the first and the second investigation into the accused PERSON All these officers had made sworn affidavits to the effect that they had never been in contact with the applicant .

Informed of the outcome of the internal police investigation , the applicant insisted that he did not want to reveal the identity of his source . He stated that he was a journalist and that he might as well give up on that career if he started revealing his sources ; no sources wanting to remain anonymous would any longer be willing to provide him with tip - offs . The applicant was informed by the President of ORG that the right of non - disclosure was not absolute , and that more weighty interests could be at stake . In the present case , long prison sentences had been imposed on the CARDINAL accused , partly on the basis of official records drawn up by police officers . The applicant replied that he was willing to state only that his source was not CARDINAL of the police officers who had made sworn affidavits in the internal police investigation .

Counsel for the applicant argued that the journalist should be the last , rather than the first , means of arriving at the truth . The witnesses , whose examination had been requested by the CARDINAL accused , ought to be heard first . Those witnesses could be confronted with the articles published in Sp!ts as well as with the article which had appeared in the DATE news magazine PERSON on DATE . This latter article had also suggested that the flooding of the flat had been staged , and the author had informed counsel for the applicant that the information contained in the article had not come from the same source as the one relied on by the applicant . Counsel for the applicant further posited that ORG ( Rijksrecherche ) could carry out an investigation of the police force . Finally , it was for ORG to assess the value of the article written by the applicant – that court could also decide to disregard it .

NORP By decision of DATE , ORG refused the applicant 's request for his detention to be lifted . It repeated that the interests of the accused and of the integrity of the police and the judicial authorities outweighed the interest of the applicant in not having to disclose the identity of his source . Having regard to the outcome of the internal police investigation , as well as to the fact that an appeal made by the police commissioner for the applicant 's source to come forward had not produced any results , ORG considered it unlikely that an investigation by ORG would clarify , within a reasonable time , the cause of the flooding , quite apart from the fact that such an investigation would seriously delay the criminal proceedings against PERSON , PERSON and H. The Court of Appeal similarly rejected the suggestion to hear the witnesses proposed by the defence first , given that those witnesses had already been heard extensively about the point in issue . For these reasons , it could not be held that the detention of the applicant breached the principles of proportionality and subsidiarity .

The Court of Appeal further considered that the applicant 's objections against the order for his detention as given at the hearing of CARDINAL DATE did not require examination since no appeal lay against such order . It also rejected the argument that the order had not been served on the applicant within TIME , since DATE as appeared from the record of that hearing of DATE he had been informed of the order orally . Finally , ORG held that the possibilities for contact between the applicant and his counsel were laid down in penitentiary legislation . It was not for ORG to assess the application of that legislation .

The applicant lodged an appeal on points of law to ORG ( PERSON ) against the decision of ORG .

A second hearing before ORG in the criminal proceedings against PERSON took place on DATE . The applicant once again refused to reveal the identity of his source . Upon this , ORG decided to lift the order for the applicant 's detention . It considered that no support for , or confirmation of , the applicant 's statement that he had received information from a police officer who had been involved in both investigations against the accused PERSON could be found in statements made by other persons and/or in the contents of documents . On the contrary , the applicant 's statement had been contradicted by CARDINAL police officers . Therefore , no credence could be attached to his statement . This being the case , the applicant 's detention no longer served any purpose .

At the same hearing on DATE , and following ORG decision to lift the applicant 's detention , counsel for the accused PERSON challenged ( wraken ) ORG . A different chamber of ORG upheld that challenge , also on DATE . It held that the opinion that the applicant 's statement was not credible , as expressed by ORG in the criminal proceedings against PERSON H. , might have a bearing on decisions which that court would be called upon to take in the criminal proceedings against PERSON This constituted an exceptional circumstance , providing an important indication for the conclusion that the accused 's fear of a judge being prejudiced against him was objectively justified .

The criminal proceedings against the CARDINAL accused continued on DATE before ORG in a new composition . The applicant was again heard as a witness , as were CARDINAL other journalists who had also published articles about the case against PERSON and the possibility of the flooding having been staged . ORG also heard CARDINAL plumbers and the caretaker of the building .

Subsequent to the decision to lift the order for his detention , the applicant withdrew his appeal on points of law as his release had rendered that appeal devoid of interest .

According to the Government , the criminal proceedings against PERSON , PERSON H. have been brought to a conclusion .

The applicant has submitted photocopies of CARDINAL cuttings from print media .

The first is of a report in the mass circulation DATE newspaper PERSON , dated DATE . It is therein stated that following reports of flooding from a second flat in GPE , police had found another large quantity of weaponry . PERSON , PERSON H. , the accused in the applicant 's case , were not at that time suspected of involvement ; the weapons were thought to belong to a terrorist organisation . The report drew attention to the similarity between the ORG case and this new case as regards the circumstances in which the weapons were found . It cited “ police sources ” as suggesting that intelligence services , possibly foreign , had engineered events in order to protect their informants .

The second , which is incomplete , is of an article that appeared on DATE in the DATE magazine PERSON . It links the CARDINAL events and cites an unnamed source as stating that they had in fact been engineered by the then ORG ( Binnenlandse Veiligheidsdienst – “ the ORG ” ) .

It appears that the report in PERSON and the article in PERSON were both written by journalists other than the applicant .

The applicant has also submitted a printout of a page taken from the internet web site of the GPE DATE newspaper ORG , dated DATE . It quotes the CARDINAL plumbers who were called in to repair the water leak as dismissing as nonsense all allegations that the damage had been caused deliberately ; in actual fact , such leaks were very common in older buildings .

Provisions of the Code of Criminal Procedure relevant to the case provide as follows :

Article CARDINAL

“ Persons who , by virtue of their position , their profession or their office , are bound to secrecy may ... decline to give evidence or to answer particular questions , but only in relation to matters the knowledge of which is entrusted to them in that capacity . ”

Article CARDINAL

“ CARDINAL . If during the interrogation the witness refuses , for no lawful reason , to answer the questions put to him or to take the required oath or affirmation , the court shall , if the investigation urgently so requires , order his detention ( gijzeling ) .

NORP The witness and his counsel shall be heard about the reasons for his refusal before the order is given .

The detention order shall be valid for DATE ; the court shall at the same time order the time at which the witness is to be presented before it anew . No remedy shall lie against the order .

NORP The court shall order the witness released from detention as soon as he has fulfilled his obligations or the investigation at the hearing is closed . It shall however have competence to order the witness released from detention whatever the state of the investigation , including at the request of the witness . LAW shall apply .

Articles CARDINAL and CARDINAL shall apply . ”

Articles CARDINAL , CARDINAL and CARDINAL , which are thus declared applicable to witnesses at the trial hearing , per se apply to witnesses heard by an investigating judge .

Article CARDINAL § CARDINAL provides , in relevant part , that the detained witness may appeal within DATE after the official notification in writing of the decision against any refusal to order his release from detention and may appeal on points of law to ORG against any such refusal given on appeal .

Article CARDINAL provides that the witness shall receive notification in writing within TIME of all decisions to order or extend his detention or to refuse his release from detention .

Article CARDINAL provides that the witness shall have the right to consult counsel . His counsel shall have unrestricted access ( vrije toegang ) to him , be allowed to see him in private and exchange confidential correspondence with him , subject to detention rules and provided that the criminal investigation in which his evidence was sought not be delayed . Counsel shall also have access to any official records relating to the questioning of the witness and , if the criminal investigation admits of it , the remainder of the case file .

Although these provisions by their wording apply to proceedings at first instance before ORG , by virtue of Article CARDINAL they apply by analogy to appeal proceedings before ORG .

The Guidelines on the position of the press in relation to police action ( PERSON over de positie van de pers bij politieoptreden ) were issued by the Minister of ORG ( Minister PERSON ) on DATE . At the time of the events complained of , they provided , in relevant part :

“ CARDINAL . Seizure of journalistic material

Journalistic material may be seized in cases described in LAW . Journalists may be faced with seizure in CARDINAL ways .

NORP The police may , on the instructions of a public prosecutor ( officier van justitie ) or an assistant public prosecutor ( hulpofficier van justitie ) or not as the case may be , arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot .

There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed . In this situation , the journalist is arrested like any ordinary citizen .

If a prosecution ensues , it will be for the independent judge eventually to decide what is to be done with any seized DATE and unpublished – material .

B. Journalistic material may also be seized on the orders of an independent judge ( the investigating judge ) , if such material may – in the judge 's opinion – serve to clarify the truth in a preliminary judicial investigation ( gerechtelijk vooronderzoek ) .

This section of the Guidelines was replaced with effect from DATE by the “ Directive on the application of coercive measures to journalists ” ( Aanwijzing toepassing dwangmiddelen bij journalisten ) , issued by ORG ( College van procureursgeneraal ) . This directive makes extensive reference to the ORG 's case - law . If the protection of a journalist 's source is at issue , the use of coercive measures must be in accordance with LAW with due regard to requirements of proportionality and subsidiarity .

In a civil case – brought by persons named in connection with alleged bribery against CARDINAL journalists who had allegedly made use of information leaked by officials DATE ORG , reversing earlier case - law , held ( judgment of DATE , PERSON ( GPE Law Reports ) DATE , no . CARDINAL ) :

“ It follows from the said judgment [ i.e. PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL facie case must be made out by the person who calls the journalist as a witness .

It is apparent from the decision of ORG and the other documents contained in the case file that the present case is characterised in that , as stated by [ the plaintiffs ] , the ' leaked ' information relates to a criminal investigation into alleged bribery of a number of local government officials in the province of GPE , in that information relating to the supposed involvement of [ the plaintiffs ] in such cases of bribery has already been made public and that [ the plaintiffs ] have sued [ the newspaper ] ORG for damages which they claim resulted therefrom ( ... ) . Accordingly , [ the plaintiffs ] have claimed no other interest in the disclosure of [ the defendants ' ] sources than that they wish to know who has ' leaked ' , because they wish eventually to sue the ORG and the persons concerned themselves for damages and also to obtain an injunction against the persons concerned to restrain them from any further ' leaking ' . However , the said judgment of ORG compels ORG to find that this interest in itself is insufficient to counterbalance the weighty public interest which belongs to the protection of [ the defendants ' ] sources . ”

Recommendation No . R(CARDINAL ) CARDINAL on the right of journalists not to disclose their sources of information was adopted by ORG DATE . It states , in relevant part :

“ [ ORG ] Recommends to the governments of member States :

NORP to implement in their domestic law and practice the principles appended to this recommendation ,

NORP to disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and

NORP to bring them in particular to the attention of public authorities , police authorities and the judiciary as well as to make them available to journalists , the media and their professional organisations .

Appendix to Recommendation No . R ( DATE ) CARDINAL

Principles concerning the right of journalists not to disclose their sources of information

Definitions

For the purposes of this Recommendation :

a. the term ' journalist ' means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication ;

b. the term ' information ' means any statement of fact , opinion or idea in the form of text , sound and/or picture ;

c. the term ' source ' means any person who provides information to a journalist ;

d. the term ' information identifying a source ' means , as far as this is likely to lead to the identification of a source :

i. the name and personal data as well as voice and image of a source , ii . the factual circumstances of acquiring information from a source by a journalist , iii . the unpublished content of the information provided by a source to a journalist , and iv . personal data of journalists and their employers related to their professional work .

Principle CARDINAL ( Right of non - disclosure of journalists )

Domestic law and practice in member GPE should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with LAW ( hereinafter : the Convention ) and the principles established herein , which are to be considered as minimum standards for the respect of this right .

ORG Right of non - disclosure of other persons )

Other persons who , by their professional relations with journalists , acquire knowledge of information identifying a source through the collection , editorial processing or dissemination of this information , should equally be protected under the principles established herein .

Principle CARDINAL ( Limits to the right of non - disclosure )

a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW , paragraph CARDINAL of the Convention . In determining whether a legitimate interest in a disclosure falling within the scope of LAW , paragraph CARDINAL of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member GPE shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and

ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :

- an overriding requirement of the need for disclosure is proved ,

- the circumstances are of a sufficiently vital and serious nature ,

- the necessity of the disclosure is identified as responding to a pressing social need , and

- member GPE enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .

c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked .

ORG Alternative evidence to journalists ' sources )

In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person , authorities should consider , for the purpose of establishing the truth or otherwise of the allegation , all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist .

Principle CARDINAL ( Conditions concerning disclosures )

a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure .

b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested .

c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with LAW .

d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority .

e. Where journalists respond to a request or order to disclose information identifying a source , the competent authorities should consider applying measures to limit the extent of a disclosure , for example by excluding the public from the disclosure with due respect to LAW , where relevant , and by themselves respecting the confidentiality of such a disclosure .

Principle CARDINAL ( Interception of communication , surveillance and judicial search and seizure )

a. The following measures should not be applied if their purpose is to circumvent the right of journalists , under the terms of these principles , not to disclose information identifying a source :

i. interception orders or actions concerning communication or correspondence of journalists or their employers ,

ii . surveillance orders or actions concerning journalists , their contacts or their employers , or

iii . search or seizure orders or actions concerning the private or business LOC , belongings or correspondence of journalists or their employers or personal data related to their professional work .

b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions , although this might not have been the purpose of these actions , measures should be taken to prevent the subsequent use of this information as evidence before courts , unless the disclosure would be justified under LAW .

ORG against self - incrimination )

The principles established herein shall not in any way limit national laws on the protection against self - incrimination in criminal proceedings , and journalists should , as far as such laws apply , enjoy such protection with regard to the disclosure of information identifying a source . ”

For the precise application of the ORG , the explanatory notes clarify the meaning of certain terms . As regards the term “ sources ” the explanation reads as follows :

“ c. Source

Any person who provides information to a journalist shall be considered as his or her ' source ' . The protection of the relationship between a journalist and a source is the goal of this Recommendation , because of the ' potentially chilling effect ' an order of source disclosure has on the exercise of freedom of the media ( see , Eur . Court H.R. , PERSON v. GPE , DATE , para . CARDINAL ) . Journalists may receive their information from all kinds of sources . Therefore , a wide interpretation of this term is necessary . The actual provision of information to journalists can constitute an action on the side of the source , for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures . Information shall also be regarded as being ' provided ' when a source remains passive and consents to the journalist taking the information , such as the filming or recording of information with the consent of the source . ”


THE GYPSY COUNCIL and OTHERS v. THE UNITED KINGDOM

The applicants are :

ORG , ORG , an organisation affiliated to ORG , has its main office in GPE , GPE ;

ORG , an organisation based in GPE , GPE ;

PERSON , an NORP citizen born in DATE and resident in GPE ;

PERSON , a NORP citizen born in DATE and resident in GPE , GPE .

The first and second applicants are organisations which represent the interests of the gypsy / romany community of which the third and fourth applicants are members .

They are represented before ORG , practising in GPE .

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

The Horsmonden Horse Fair is a significant cultural and social event in the life of PERSON community in GPE . It has been held at FAC in GPE on DATE in DATE annually for DATE , at least . The applicants claim that there is good reason to think that the event has taken place for DATE . The majority of those who attend the fair are gypsies .

On DATE , ORG that occupies FAC decided that the fair was to be henceforth cancelled . In DATE , pursuant to LAW , as amended by ORG “ the DATE LAW ) , ORG applied to the Chief Constable for the necessary steps to be taken . In a letter dated DATE , the Chief Constable applied to ORG ( “ the ORG ” ) under section CARDINALA of the DATE Act for a prohibition order to be made . He stated inter alia that he believed that a trespassory assembly of CARDINAL or more people was likely to be held on FAC and :

“ Based on previous years’ experience , concerns of residents and intelligence , I reasonably believe that serious disruption to the life of the community will result because of :

i. Incidents related to feuding groups of ‘ ORG in DATE , CARDINAL and DATE , with an escalating level of policing required to prevent serious crime ( CARDINAL officers in DATE ) .

ii . NORP The racing of horses on the highway .

iii . The illegal and indiscriminate parking of cars throughout the village ...

iv . Concerns over public health due to poor hygiene , litter , discarded nappies and clearing up ;

v. NORP - social behaviour by visitors .

vi . Closure of local public houses and shops for fear of theft .

vii . Necessary road closures contributing to a negative financial impact in the area .

viii . The threat that ‘ ORG will defy the cancellation .

ix . Fear expressed by residents ...

x. A background level of increased crime which occurs over the event DATE .

xi . NORP The normal social interactions between villagers being suspended as a consequence of the sheer volume of visiting ‘ travellers’ . ”

The Chief Constable concluded that this made it necessary to apply for the prohibition order so that effective policing could be carried out .

At a council meeting on DATE , ORG accepted the recommendation of the director of operational services that ORG should seek the approval of the Secretary of ORG in the making of an order . The main reason that ORG gave for issuing LAW was that the fair “ may result in serious disruption to the life of the community in the vicinity of the prohibited area . ”

On behalf of the Secretary of ORG , the ORG Minister , with the recommendation of the senior officer of ORG public order section , gave consent to the application for the Prohibition Order . The Order was then issued on DATE in accordance with section CARDINALA of ORG prohibiting any “ trespassory assembly ” within a QUANTITY radius of FAC beginning at TIME on DATE , DATE and terminating at TIME on DATE , DATE .

Notwithstanding the prohibition order , on DATE , the GPE police gave consent to the conduct of a limited parade on DATE , DATE , in PERSON .

In response to the prohibition order , the first applicant in this case , ORG , issued proceedings in ORG applying for judicial review on DATE . The applicant sought to quash the prohibition order , claiming that the Secretary of ORG and ORG had made their decision to issue the order by considering both irrelevant factors and failing to consider factors that were in fact relevant . They alleged that there had been no evidence to support claims of risk to safety or disruption to the local community and no consideration given to alternative ways in which the fair might have been staged on the site . Among the relevant factors that the first applicant claimed the respondents failed to take into account were the applicants’ rights under LAW , DATE , and CARDINAL of LAW and LAW for ORG .

The case was heard on an expedited basis before Deputy Judge PERSON , who granted permission to apply for judicial review and heard the application on DATE . Having heard the parties , the Deputy Judge dismissed the application seeking to quash the prohibition order . He found that sufficient relevant information was before both ORG and the Home Secretary to enable them to properly exercise their discretion in deciding whether to issue the order . The letter of the Chief Constable set out the concerns that serious disruption to the community would result . He stated that ORG were entitled to think that the need to avoid disruption to the local settled community should take priority . He considered that the fact that ORG could go to an alternative site QUANTITY away at FAC , which was approved by the local authority and the police , served to limit the impact upon the Romany Gypsy community . He also found that there was no basis for the argument that LAW was not taken into account . He noted that ORG CARDINAL and CARDINAL of the Convention recognised that a balance had to be struck between the interests of the individual , in this case , the interests of the gypsy community and the interests of society generally , but found no reason on that basis to interfere on public law grounds with the assessment reached by the ORG and Secretary of ORG in light of the advice from the Chief Constable . He rejected the first applicant ’s request for leave to appeal . The first applicant was advised by counsel that no further remedies were available .

Subsequently , on DATE , DATE , a parade took place at PERSON , which was limited by the police to CARDINAL persons while measures taken by the police controlling entry to the village severely restricted the numbers of persons from the gypsy community wishing to watch the parade . An alternative fair apparently took place peacefully DATE at FAC attended by CARDINAL gypsies .

Section CARDINALA of LAW CARDINAL as amended by ORG DATE

“ ( CARDINAL ) If at any time the chief office of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only limited right of access and that the assembly--

( a ) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public ’s rights of access , and

( b ) may result–

( i ) in serious disruption to the life of the community , or

( ii ) where the land , or a building on monument on it , is of historical , architectural , archaeological or scientific importance , in significant damage to the land , building or monument ,

he may apply to the council for the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or part of it , as specified .

( CARDINAL ) On receiving such an application , a council may--

( a ) in GPE and GPE , with the consent of the Secretary of ORG , make an order either in the terms of the application or with such modifications as may be approved by the Secretary of ORG ...

In this section and sections CARDINALB and CARDINALC – ‘ ORG means an assembly of CARDINAL ;

‘ ORG , in relation to a right of access by the public to land , means that their use of it is restricted to use for a particular purpose ( as in the case if a highway or road ) or is subject to other restrictions ;

‘ occupier’ means–

( a ) in GPE and GPE , the person entitled to possession of the land by virtue of an estate or interest held by him ; ... ”