CASE OF TOLSTOY MILOSLAVSKY v. THE UNITED KINGDOM

Violation of Art. 10;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings;Lack of jurisdiction (injunction to State)

ORG Count PERSON , a NORP citizen , lives in GPE , GPE , in GPE . He is a historian .

ORG In DATE a pamphlet written by the applicant and entitled " War Crimes and the Wardenship of Winchester College " was circulated by Mr PERSON to parents , boys , staff and former members of the school as well as to Members of ORG , Members of ORG and the press . Mr LOC bore a grievance against the Warden of ORG , Lord PERSON , at the time Chairman of an insurance company , concerning an insurance claim . The pamphlet included the following statements :

" DATE some CARDINAL GPE and NORP prisoners - of - war and refugees were handed over to NORP and ORG forces as a result of an agreement made with ORG administering occupied GPE . They included a large proportion of women , children , and even babies . The majority of LOC officers and their families handed over held ORG passports or those of the NORP countries in which they had found refuge after being evacuated from GPE by their NORP and NORP Allies in DATE , and were hence not liable to return under the terms of LAW , which related only to NORP citizens .

As was anticipated by virtually everyone concerned , the overwhelming majority of these defenceless people , who reposed implicit trust in NORP honour , were either massacred in circumstances of unbelievable horror immediately following their handover , or condemned to a lingering death in NORP gaols and forced labour camps . These operations were achieved by a combination of duplicity and brutality without parallel in NORP history since the Massacre of Glencoe . Outside Lienz may be seen DATE a small LOC cemetery , whose tombstones commemorate men , women and children shot , clubbed , or bayoneted to death by NORP troops .

The man who issued every order and arranged every detail of the lying and brutality which resulted in these massacres was Brigadier PERSON , Chief of Staff to General PERSON 's CARDINAL ORG , subsequently ennobled by PERSON as the CARDINALst Baron PERSON . Since DATE he has been Warden of ORG , one of the oldest and most respected of NORP public schools . Whether Lord PERSON is an appropriate figure for such a post is primarily a matter for the College to decide . But it is also surely a legitimate matter of broader public concern that a man responsible for such enormities should continue to occupy a post of such honour and prominence within the community , in particular one which serves as exemplar for young people themselves likely DATE to achieve high office and responsibility .

The truth is , however , that Lord PERSON knows every one of his pleas to be wholly or in large part false . The evidence is overwhelming that he arranged the perpetration of a major war crime in the full knowledge that the most barbarous and dishonourable aspects of his operations were throughout disapproved and unauthorised by the higher command , and in the full knowledge that a savage fate awaited those he was repatriating . Those who still feel that a man with the blood of CARDINAL men , women and children on his hands , helpless charges whom ORG was making every attempt to protect , is a suitable Warden for Winchester might care to ask themselves ( or Lord PERSON , if they can catch him ) the following questions :

Lord PERSON has been repeatedly charged in books and articles , by press and public , with being a major war criminal , whose activities merit comparison with those of the worst butchers of NORP GPE or NORP GPE ... "

Lord PERSON instituted proceedings against Mr LOC for libel in ORG ( ORG ) . The applicant was subsequently joined to these proceedings at his own request . The defendants pleaded " justification " and " fair comment " .

Lord PERSON asked that the case be heard by a single judge without a jury . However , the applicant exercised his right to trial by jury .

ORG The trial began on DATE and lasted until DATE when the jury of CARDINAL returned its verdict . In the course of the trial Lord PERSON gave evidence for DATE and was cross - examined . The applicant gave evidence for DATE and a number of witnesses were called .

Mr Justice PERSON devoted some CARDINAL pages of his summing - up to the question of the assessment of damages if defamation were to be established . He directed the jury , inter alia , as follows :

" ... Let us now , members of the jury , ... deal with the aspect of damages ... I have to give you this direction in law because damages may arise ... If the plaintiff wins , you have got to consider damages . Some would say that the only direction on damages necessary in this particular case was to say : [ the applicant ] says that if damages are to be payable he agrees they should be enormous . Mr Rampton [ defence counsel ] , I do not think , in his final speech could quite bring himself to utter that word , but he said they will be very generous - and I could stop there . But that is not the way , you see , because the parties do not dictate ( even if they are making concessions ) how you should approach damages . You do it in accordance with the law , and that is what I am now going to tell you . You have to accept my directions about it , and you will apply them of course as you think fit .

the means of the parties - the plaintiff or the defendant - is immaterial

Neither , as I think I said earlier but I say it now , is the question whether Lord PERSON or [ the applicant ] , or for that matter Mr LOC , have been or will be financially supported by any well wishers as to damages relevant at all . Nor is it relevant the undoubted fact that legal aid is not available in libel cases to a plaintiff or a defendant . All irrelevant , and if it is to be changed it is up to ORG to do something about it ...

... what you are seeking to do , what a jury has to do , is to fix a sum which will compensate the plaintiff - to make amends in financial terms for the wrong done to him , because wrong has been done if you have got to the stage of awarding damages . It is not your duty or your right to punish a defendant ...

What [ Lord PERSON ] does claim , of course , is for ' general damages ' , as lawyers call it , a sum of money to compensate him . First of all , you have to take into account the effect in this case , as in every case where there is libel , on the position , standing and reputation of the successful plaintiff ...

... If they [ the allegations made in the pamphlet ] were untrue and not fair comment , where it is suggested that they were comment , he is entitled to be compensated for that , so that that will register your view of that .

Then you have got to consider ... the injury to his feelings . I told you that he can not , of course , claim on behalf of his wife or any member of his family , although the affect on them may have had an affect on him which is a reaction , which you are entitled to take into account .

It is not just his feelings when he read this ... It is his feelings during the time whilst awaiting the trial ... and the publicity ...

... you have to consider ... what lawyers call ` vindication ' ...

You may think - it is a matter for you - that in this particular case vindication - showing that he was right - is the main reason for Lord PERSON bringing this action - that is what he says anyway - to restore his character and standing ... ' An award , an enormous award ' , to use [ the applicant 's ] words - ' a very generous award ' to use Mr PERSON 's words , will enable him to say that put the record straight .

Members of the jury , of course , you must not , as a result of what I have just said , just bump and bump the damages up . You must , at all times , as they say , keep your feet on the ground .

... You have to take into account the extent and nature of the publication .

... whilst you must leave aside any thought of punishing the defendants if you find for the plaintiff , juries are always entitled , as I have hinted already , to take into account any conduct of the defendant which has aggravated the damages - that is to say , made the damage more serious and the award higher - or mitigated them - made the damage done less serious and the award smaller .

Now , CARDINAL general remarks which I make in every case : nobody asks you how you arrive at your verdict , and you do not have to give reasons like a Judge does , so it is exceedingly important that you look at the matter judicially , and that means that you should not be outrageously or unreasonably high , or outrageously or unreasonably low .

The second matter I say to every jury is : please , I beg you , if you come to damages , do not pay the slightest attention to any other case or the result of any other case you may have read about or heard about . The facts and the legal considerations are like[ly ] to have been completely different . There is no league of damages in defamation cases . There is no first division , there is no fourth division , there is no ORG conference , if any of you are interested in football .

So , members of the jury , please forget other cases . Use your own common sense about it . How do you translate what I have said into money terms ? By our rules and procedure , members of the jury , counsel can use , and a judge can use , words like ' very substantial ' or ' very small ' , but we do not either of us , counsel or judges , mention figures . Some people again , who have not really considered the matter very carefully , wonder about that , and they say juries should be given guidance , and I say to you what I say to every jury in these cases , it would not be a great deal of help for you , because inevitably , it is human nature and it would be their duty - counsel for the plaintiff would be at the top end of the scale and perhaps in some cases , I do not suggest this one , off the clock , and counsel for the defendant would be at the bottom end of the scale in the basement . Now , that would not be much good to anybody . As for the Judge , well the jury might think - you may have an exactly opposite view - a jury might think : ' Well , on the whole , whatever other people say about this particular Judge in this case , we think he tried to be fair , why does n't he suggest a figure to us ? '

Supposing a Judge , myself in this case , were to suggest a figure to you , or a bracket between so and so and so and so , there would be CARDINAL possibilities : CARDINAL is that you would ignore what I said and either go higher than my figure or bracket , or much lower , in which case of course the losing party that did not like it would be off to ORG saying : ' Look , the Judge suggested a figure and the jury went above it or below it . '

Supposing you accepted my suggestion , and gave a figure that I recommended , or close to it . Well , all I can say is that you would have been wasting your valuable time in considering the matter of damages because you would just have been acting as a rubber stamp for me , or the Judge , whoever it was . So we do not have that over - bidding or under - bidding , as ORG has called it , by counsel , and we do not have ORG trying to lay down to juries what they should award , and I do not hesitate to say , whatever other people say , I hope and pray , for the sake of our law and our court , we never get the day when ORG dictate to juries so that they become rubber stamps .

I am , however , allowed - indeed encouraged - by ORG just to say a little bit more . I say it not perhaps in the words of ORG , but in my own way , which may be too homely for some , but I say to you that you must remember what money is . You do not deal in PERSON money just reeling off noughts because they sound good , I know you will not . You have got to consider money in real terms . Sometimes it is said ' Well , how much would a house cost of a certain kind ' , and if you are giving a plaintiff as compensation so much money how many houses is he going to buy ? I do not mean to suggest that Lord PERSON or any other plaintiff would take his damages and go and buy a house or a row of houses , but that relates it to the sort of thing , if you will allow me to say , you and I do know something about , because most of us have a pretty good idea how much houses are worth . So remember that . "

ORG In its unanimous verdict of CARDINAL DATE , the jury answered the questions put by PERSON Justice PERSON as follows :

" CARDINAL . Have [ the applicant ] and Mr LOC proved that the statements of fact in the pamphlet are substantially true ?

... No .

Does the pamphlet contain expressions of opinion ?

... Yes .

Have [ the applicant ] and Mr LOC proved that those expressions of opinion are fair , in the sense that they are such as a fair - minded man could honestly make on the facts proved to be true ?

... No .

( CARDINAL ) Do you find for Lord PERSON or for Mr LOC ?

... Lord PERSON .

( CARDINAL ) Do you find for Lord PERSON or for [ the applicant ] ?

... Lord PERSON .

What sum in damages do you award Lord PERSON ?

... £ MONEY . "

Accordingly , Mr Justice PERSON directed that judgment should be entered against the applicant and Mr LOC for the above - mentioned sum , which was CARDINAL times the largest amount previously awarded by an NORP libel jury . In addition he granted an application by Lord PERSON for an injunction ( section CARDINAL of LAW DATE ) restraining , inter alios , the defendants from publishing or causing or permitting to be published or assisting or participating in or conniving at the publication of the words contained in the impugned pamphlet or

" any other words or allegations ( however expressed ) to the following or any similar effect namely that the Plaintiff [ Lord PERSON ] in connection with the handover in DATE to NORP or NORP forces of military or civilian personnel was guilty of disobedience or deception or criminal or dishonourable or inhumane or other improper or unauthorised conduct or was responsible for the subsequent treatment of any such personnel by the NORP or the PERSON the said defendants being at liberty to apply to vary or discharge this injunction . "

The applicant was also ordered to pay Lord PERSON 's costs .

ORG The applicant ( but not Mr LOC ) gave notice of appeal to ORG setting out a number of grounds , several of which went to the fairness of the proceedings . He criticised Mr Justice PERSON among other things for having displayed overt animosity towards the defendants and for his continual interruption , sarcasm and abuse of defence counsel . The Judge had , he alleged , insulted and disparaged the defence witnesses . Throughout his summing - up he had wholly or largely suppressed or ignored many of the most important aspects of the case for the defence and had misled the jury on issues central to the defendants ' arguments . When directing the jury on the question of damages , the tenor of the judge 's remarks had been in large part to urge the jury to award high damages to the plaintiff and to discount the alternatives which had been reasonably available on the evidence ; the damages had in any event been unreasonable and excessive .

ORG On DATE Lord PERSON applied to ORG for an order requiring the applicant , under LAW , Rule CARDINAL ( CARDINAL ) of the DATE Rules of ORG , to give security in an amount which would cover the costs of his opponent 's representation if the appeal were to be unsuccessful . It was not disputed that the applicant would be unable to pay the relevant costs .

ORG In an open letter of CARDINAL DATE , Lord PERSON offered not to enforce £ MONEY of the damages awarded . In his reply the applicant confirmed that he was unable to provide any security for Lord PERSON 's costs in the appeal proceedings and , maintaining that the trial had been a travesty of justice , declined the offer .

ORG In a CARDINAL - page judgment of CARDINAL DATE the Registrar of ORG examined the facts raised by the applicant and rejected the application for security for costs . The PERSON stated that impecuniosity was a ground for awarding security for costs in respect of the costs of an appeal to ORG . In exercising its discretion in this regard , ORG would attach particular weight to the merits , or otherwise , of the appeal concerned . If the appeal had little or no merit , a security for costs order would normally be made against an impecunious appellant . If the appeal had reasonable prospects of success , the court would be reluctant to order security for costs .

The PERSON pointed out that he had not found it easy to decide whether the applicant 's appeal on liability had sufficient strength to justify allowing him to proceed without furnishing security for costs , given that , if his appeal failed , he would not have the funds to pay Lord PERSON 's costs of the appeal . He added that , with some hesitation , he found that on several specific points the appeal had just enough strength to lead him to conclude that security for costs should not be awarded in this case . There was a possibility that if the applicant succeeded in convincing ORG that he had not had a fair trial , and his case had not been fairly and clearly put to the jury , ORG would conclude that a new trial had to be ordered , notwithstanding the fact that the chances of his succeeding on the new trial were slim .

In view of the above conclusion the Registrar did not find it necessary to deal with an argument made by counsel for Lord PERSON that the appeal on quantum would be academic because of his offer of DATE ( see paragraph CARDINAL above ) .

Lord PERSON appealed successfully against the Registrar 's decision to the full ORG , which heard the matter for DATE between CARDINAL and DATE and gave judgment on DATE . The members of ORG gave , in summary , the following reasons .

ORG had to consider the application afresh and decide whether to order security would amount to a denial of justice to the applicant , having regard to the merits of his appeal . The criticism made in the applicant 's grounds of appeal did not concern Mr Justice PERSON 's directions on the law but , in particular , what the applicant characterised as bias and partiality on the part of the judge towards Lord PERSON and the way in which the judge had dealt with CARDINAL particular issues of fact . The criticism was however not justified . Mr Justice PERSON had clearly left to the jury the decision on the facts of the case and all the major matters had been dealt with fully and fairly . The judge 's summing - up had quite clearly brought to the jury 's minds the matters which the defence had contended were of primary significance . Counsel had been given full opportunities to raise matters of alleged error , and when they had deemed it necessary they had done so . Furthermore the principal witnesses had been in the witness - box for some thirteen days in all . Lord PERSON , who had been the central witness in the case in the sense that it was his conduct which was the subject of examination , had been in the witness box for CARDINAL and a half days . It was inconceivable that the jury had not taken full account of and acted on the evidence of the principal witnesses who had been so comprehensively examined and cross - examined upon all the material issues in the case .

The case had been an entirely appropriate CARDINAL for a jury and had duly been tried by a jury . In this connection Sir PERSON noted that at a preliminary stage , when Lord PERSON had asked for the case to be tried by a judge alone , the applicant had resisted his application .

The new evidence adduced by the applicant did not carry any weight in the light of all the evidence which had been given at the trial .

The applicant 's submission that Lord PERSON was supported by ORG was irrelevant .

In the result , on the issue of liability there was no merit in the appeal .

Sir PERSON added :

" The quantum of damage is a very large sum . However , there is no doubt that the learned judge gave an impeccable direction on damages . [ The applicant ] has argued that the judge invited the jury to give excessive damages . A correct reading of the transcript shows that he did just the opposite . There is no merit in that submission .

The award was entirely within the jury 's discretion and they received a very full direction about it . I have no doubt that it was meant to mark their view of the enormity of the gross libel which had been published and persisted in .

[ The applicant ] has however made it clear that he is not really interested so much in the question of the amount of damages as in the issue of liability . He wishes to continue to pursue Lord PERSON if he can and to persist in his allegation at a new trial . In fact he was offered a substantial reduction in the damages to the extent of MONEY . This he rejected . This move was not a concession by the plaintiff 's solicitors that the award was too high , but was made recognising that the plaintiff was unlikely to receive the amount awarded and was content with the fact that the jury had by their verdict rejected in an overwhelming manner the truth of the libel which had been published . "

" The court will be very slow to interfere with the jury 's verdict unless there has been some material irregularity in the proceedings which renders the verdict unsafe or unsatisfactory , or it can properly be said that the verdict is perverse . Much the same considerations must apply in the instant case .

As to any irregularity in the proceedings , I detect none ...

This case , and the jury 's verdict , depended essentially upon the veracity of Lord ORG . No document or documents were produced which on their face could destroy Lord PERSON 's credibility . If the jury had disbelieved Lord PERSON , there would have been an end of his case . The fact that the jury found in his favour and awarded him the damages that they did demonstrates that upon the vital issues of the case they must have accepted the plaintiff 's evidence . Was that a course which was open to the jury ? In my judgment , it plainly was ...

There is not in my judgment the remotest chance of ORG interfering with the jury 's finding in the plaintiff 's favour and directing a retrial of that issue , either on the basis that the verdict can not stand or on the basis of fresh evidence which [ the applicant ] seeks to introduce .

Finally , upon the issue of damages , [ the applicant ] had been offered in an open letter the substitution of £ MONEY for the CARDINAL and QUANTITY awarded by the jury . The libel remains as serious a libel as it is possible to imagine . Any appeal upon quantum alone would be no more than an academic exercise . [ The applicant ] wishes to reopen the whole case . In my judgment , the defendant being impecunious , justice demands that he should provide security for the plaintiff 's costs of any appeal . "

" It would be difficult to conjecture an allegation more calculated to bring the respondent into the hatred and contempt of his fellow men and the evidence showed that it was deliberately circulated with the aim of encouraging the respondent to sue him , thus giving the appellant the opportunity to challenge in public the respondent 's conduct DATE ...

It is not for this court to grant a retrial after the verdict of a jury , even if it thought that a reasonable jury ought to have found differently . The test which , on the hearing of the appeal , this court would have to apply is whether the finding of the jury is so absolutely unreasonable that it can be said that they have not performed the judicial duty cast upon them . Again I have listened to the skilful development of the facts and evidence by the appellant . He has failed to satisfy me that he has any reasonable chance of success in this appeal . Even if he persuaded the court to grant a retrial on the issue of the amount of the damages , I would regard as negligible the prospect of any jury , doing their judicial duty , awarding the respondent [ Lord PERSON ] less than the sum which he has in reality already offered to accept in compromise of this appeal . The appellant has therefore failed to satisfy me that he has any such real and substantial grounds of appeal as would justify this court in saying that the special circumstances of his inability to pay the respondent 's costs if he fails can be disregarded . "

ORG ordered the applicant to provide security for Lord PERSON 's costs in respect of the appeal in the sum of £ MONEY within DATE , failing which the appeal would stand dismissed . It rejected a request by the applicant for DATE to attempt to raise the money . In addition ORG ordered the applicant to pay Lord PERSON 's costs ( £ MONEY ) in the security for costs proceedings . The judgment runs to CARDINAL pages .

The applicant did not furnish the required security and his appeal was dismissed on DATE .

ORG No part of the damages or costs have to date been paid by the applicant to Lord PERSON .

ORG In DATE the applicant applied to ORG for leave to appeal out of time against ORG judgment of CARDINAL DATE and for leave to adduce new evidence . The PERSON informed him in DATE that ORG had no jurisdiction since the subject - matter was the same as an appeal which had already been dismissed .

On DATE the applicant issued a writ against Lord PERSON in ORG , applying for an order that the judgment of CARDINAL DATE be set aside on the grounds of fraud . He also sought damages and other relief . Lord PERSON applied to strike out the action as an abuse of process and as being vexatious and frivolous .

By judgment of DATE , Mr ORG struck the case out as being an abuse of the process of the court , on the ground that the applicant was unable to establish a reasonable possibility that the new evidence might show that Lord PERSON had committed perjury . In a judgment of DATE Mr Justice PERSON ordered the applicant 's solicitors , who had funded the new action by acting without a fee , to pay PERCENT of Lord PERSON 's costs in the proceedings . An appeal by the applicant to ORG is pending .

ORG Under LANGUAGE law the actions of libel and slander are private legal remedies , the object of which is to vindicate the plaintiff 's reputation and to make reparation for the injury done by the wrongful publication to a third person or persons of defamatory statements concerning the plaintiff . The defendant in these actions may prove the truth of the defamatory matter and thus show that the plaintiff has received no injury . Although there may be damage accruing from the publication if the facts published are true , the law gives no remedy by action ( see GPE 's ORG , ORG , vol . CARDINAL , paragraph CARDINAL ) .

ORG A strict liability rule applies to the tort of libel : " A man in good faith may publish a libel believing it to be true , and it may be found by the jury that he acted in good faith believing it to be true , but that in fact the statement was false . Under those circumstances he has no defence to the action , however excellent his intention . " ( Lord PERSON in GPE v. ORG [ DATE ] Appeal Cases CARDINAL ( ORG ) , at pp . CARDINAL - CARDINAL )

The law presumes in the plaintiff 's favour that the words are false , unless and until the defendant proves to the contrary ( GPE , Libel and Slander , Eighth Edition , paragraph CARDINAL , p. CARDINAL ) .

If the defendant attempts unsuccessfully to prove that the words are true , this is likely to increase the damages ( PERSON and PERSON on defamation , Second Edition , paragraph CARDINAL , p. CARDINAL ) .

ORG The purpose of damages in the law of libel is as stated by Lord PERSON in GPE v. ORG ( [ DATE ] Appeal Cases CARDINAL , at p. CARDINAL , quoted by Lord PERSON in PERSON v. Pressdram Ltd [ DATE ] CARDINAL Queen 's Bench CARDINAL , p. CARDINAL ) :

" In actions of defamation and in any other actions where damages for loss of reputation are involved , the principle of restitutio in integrum has necessarily an even more highly subjective element . Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before his wrong . Not merely can he recover the estimated sum of his past and future losses , but , in case the libel , driven underground , emerges from its lurking place at some future date , he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge . ` ... [ A ] man defamed does not get compensation for his damaged reputation . He gets damages because he was injured in his reputation , that is simply because he was publicly defamed . For this reason , compensation by damages operates in CARDINAL ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done . ' ... Quite obviously , the award must include factors for injury to the feelings , the anxiety and uncertainty undergone in the litigation , the absence of apology , or the reaffirmation of the truth of the matters complained of , or the malice of the defendant ... "

ORG If the words in question are reasonably capable of being understood in a defamatory sense , the judge must leave it to the jury to say whether they did , in fact , defame the plaintiff . If not , he must give judgment for the defendant without leaving the case to the jury .

The proper course to adopt for the judge in civil proceedings for libel or slander , or criminal proceedings , where there is a case to go to the jury , is to define what is libel in point of law , and leave it to the jury to decide as a matter of fact whether the particular publication falls within that definition or not .

GPE 's ORG , ORG , vol . CARDINAL , paragraphs CARDINAL , CARDINAL and CARDINAL ) .

ORG There is no upper or lower limit to the sum of damages which a jury in a libel trial may award . In the above - mentioned case of PERSON v. ORG , Lord PERSON stressed that referring juries to other cases would confuse rather than assist the jury and that any attempt by counsel or the judge to discuss figures would lead to unhelpful overbidding and underbidding and would risk usurping the true function of the jury . However , the judge might give some guidance to a jury to assist it in appreciating the real value of very large sums of money , for example by inviting it to consider what regular income could be obtained if the sum was invested ( see the above - mentioned case of ORG , Lord PERSON , p. CARDINAL ; see also PERSON , p. CARDINAL , and Lord PERSON , pp . CARDINAL CARDINAL ) .

ORG At the relevant time , under LAW , LAW , of the Rules of the Supreme Court DATE , ORG had power to set aside a High ORG judgment and order a new trial . Rule CARDINAL ( CARDINAL)-(CARDINAL ) read :

" ( CARDINAL ) On the hearing of any appeal ORG may , if it thinks fit , make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict , finding or judgment of the court below .

( CARDINAL ) ORG shall not be bound to order a new trial on the ground of misdirection , or of the improper admission or rejection of evidence , or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them , unless in the opinion of ORG some substantial wrong or miscarriage has been thereby occasioned .

( CARDINAL ) A new trial may be ordered on any question without interfering with the finding or decision on any other question ; and if it appears to ORG that any such wrong or miscarriage as is mentioned in paragraph CARDINAL affects part only of the matter in controversy , or CARDINAL or some only of the parties , the court may order a new trial as to that party only , or as to that party or those parties only , and give final judgment as to the remainder .

( CARDINAL ) ... "

As to what test ORG should apply in exercising its powers to set aside a jury 's verdict on damages , Lord GPE in GPE v. ORG ( [ DATE ] Appeal Cases CARDINAL , p. CARDINAL ) stated that it was not sufficient for the court to conclude that the award was excessive ; it had to ask whether the award could have been made by sensible people , or whether it must have been arrived at capriciously , unconscionably or irrationally .

ORG According to LAW ( CARDINAL ) , as in force at the material time , ORG had no power , in lieu of ordering a new trial , to reduce or increase the damages awarded by the jury , unless the party or parties concerned consented .

Since the entry into force on DATE of ORG , ORG has a power under section CARDINAL ( CARDINAL ) of that LAW to substitute its own assessment of damages for that of the jury irrespective of whether the parties agree or not . LAW , LAW ( CARDINAL ) , as amended in the light of the above section DATE , provides :

" In any case where ORG has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate , the court may , instead of ordering a new trial , substitute for the sum awarded by the jury such sum as appears to the court to be proper , but except as aforesaid ORG shall not have power to reduce or increase the damages awarded by a jury . "

ORG In the case of PERSON v. ORG ( DATE ) Ltd ( [ DATE ] CARDINAL Weekly Law Reports , p. CARDINAL ) ORG exercised its powers under section CARDINAL of ORG DATE and under the new LAW , LAW ( CARDINAL ) . In interpreting its power to order a new trial or to substitute another award on the ground that the damages awarded by the jury were excessive , ORG observed that the grant of an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what is " necessary in a NORP society " or " justified by a pressing social need " for the purposes of LAW ) of ORG . The common law , if properly understood , required the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past . It followed that what had been regarded as the barrier against intervention should be lowered . The question became :

" Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re - establish his reputation ? "

As to what guidance the judge could give to the jury , ORG was not persuaded that the time had come to make references to awards by juries in previous libel cases . Nor was there any satisfactory way in which awards made in actions involving serious personal injuries could be taken into account . It was to be hoped that in the course of time a series of decisions of ORG , taken under section CARDINAL of ORG DATE , would establish some standards as to what would be " proper " awards . In the meantime the jury should be invited to consider the purchasing power of any award which they may make and to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re - establish his reputation .

ORG concluded that although a very substantial award was clearly justified in the case , judged by any objective standards of reasonable compensation or necessity or proportionality , the award of £ MONEY was excessive . It substituted the sum of £ MONEY .


Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation , the ORG ( PERSON Revolutionary Way ) .

On DATE ORG ordered the applicant ’s detention on remand .

On DATE the applicant was released pending trial .

On DATE ORG convicted the applicant of membership of an illegal organisation and sentenced him to DATE imprisonment .

On DATE ORG quashed the judgment of ORG on the ground that the latter had misinterpreted the domestic law in respect of the offence in question .

Subsequent to the promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , ORG acquired jurisdiction in the applicant ’s case .

On DATE ORG commenced the applicant ’s trial .

On DATE the applicant was convicted of attempting to undermine the constitutional order under LAW . The first - instance court however held that there was no need for the applicant ’s imprisonment , taking into account his previous custody and detention on remand .

The proceedings are still pending .


The applicants [ Mr PERSON and Mr PERSON ] are CARDINAL NORP nationals who were born in DATE and DATE respectively and live in LOC .

They were represented before the ORG by Mr PERSON GPE , of LOC .

At TIME on DATE the applicant , who was driving on the motorway , had an argument with a toll - gate official about the amount he was to be charged for using the motorway . Shortly afterwards , some guardia civil officers , having been alerted by the toll - gate official , observed that the applicant was driving his car in zigzags . After stopping him , they noted that he appeared to be under the influence of alcohol . The applicant refused to submit to a breath test , despite being informed that his refusal might make him liable to prosecution under LAW for serious failure to obey the orders of a law - enforcement officer .

An investigation was conducted , following which the applicant was committed for trial on charges of endangering other road - users and serious failure to obey orders .

After adversarial proceedings the ORG no . CARDINAL , in a judgment of DATE sentenced the applicant to a fine or , in default of payment , CARDINAL months’ imprisonment , and disqualified him from driving for DATE for endangering other road - users or jeopardising road safety contrary to LAW . It decided to refer to ORG the question whether LAW , which made serious failure to obey the orders of an officer a criminal offence , was compatible with LAW , which guarantees the right not to make self - incriminating statements and not to confess guilt . The court accordingly , decided to stay its decision on the second charge until ORG had ruled on the constitutionality of LAW .

The applicant appealed against his conviction on the charge of endangering other road - users , but it was upheld by the LOC provincial on DATE .

In a judgment delivered by a full court on DATE ORG held that LAW was compatible with LAW . ORG held that breath tests were not designed to compel drivers to admit certain facts , but were merely a means of obtaining expert evidence , and could not be regarded as obliging the driver to incriminate himself or , therefore , as being contrary to LAW . The court held that breath tests did amount to interference with the right to respect for a person ’s private life , guaranteed by LAW , but that the interference was necessary for the prevention of road accidents and for the safety of others .

After adversarial proceedings the ORG no . CARDINAL , in a judgment of CARDINAL DATE , convicted the applicant of serious failure to obey orders on the ground that he had refused to submit to a breath test . It sentenced him to CARDINAL months’ imprisonment .

At TIME on DATE the applicant struck CARDINAL other cars while attempting to park in LOC . An argument ensued with the owners of the other CARDINAL cars and the applicant was taken to the police station where he was ordered to submit to a breath test . The applicant refused to do so , despite being informed that his refusal might make him liable to prosecution for serious failure to obey an officer ’s orders .

In a judgment of DATE ORG no . CARDINAL decided to refer to ORG the question whether LAW , which made serious failure to obey orders a criminal offence , was compatible with LAW , which guarantees the right not to make self - incriminating statements and not to confess guilt . The court accordingly decided to stay its decision on the charge until ORG had ruled on the constitutionality of LAW .

Following the above - mentioned judgment of ORG of DATE , ORG no . CARDINAL , in a judgment of CARDINAL DATE , convicted the applicant of serious failure to obey an officer ’s orders on the ground that he had refused to submit to a breath test . It sentenced him to CARDINAL months’ imprisonment . The applicant appealed to the LOC provincial . The case is still pending before that court .

“ Anyone driving a motor vehicle or moped under the influence of toxic or narcotic drugs , psychotropic substances or alcoholic drinks shall be liable to a prison sentence of TIME or to DATE - fines and shall in any event be disqualified from driving a motor vehicle or moped … for a period of DATE . ”

“ A driver who refuses to comply with a law - enforcement officer ’s orders to submit to a statutory test to verify the condition referred to in the preceding Article shall be punished in the same way as a person convicted of serious failure to obey orders , as provided in LAW . ”

“ Anyone … who resists an order of the authorities or their officers , or is guilty of serious failure to obey them in the exercise of their duties , shall be liable to a prison sentence of DATE . ”

Under section CARDINAL(CARDINAL ) of the Traffic and Road Safety Act of DATE and sections CARDINAL to CARDINAL of LAW DATE , tests of alcohol levels may be ordered by a police officer or a judicial authority . They usually consist in testing , by means of approved breath - testing device , the air exhaled . The person concerned can ask for a second test , which may be a blood , urine or other test .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

On DATE the applicant ’s wife initiated criminal proceedings against the applicant for bodily harm .

On DATE the applicant ’s wife left for ORG in GPE . Without the applicant ’s knowledge , she took with her their son .

On DATE ORG issued an interim measure awarding the applicant ’s wife custody of the child .

On DATE the Považská Bystrica ORG discontinued the criminal proceedings on the ground that no crime had been committed .

On DATE the discontinuation of the criminal proceedings was confirmed by ORG .

On DATE the applicant lodged an action with ORG petitioning for divorce and seeking determination of the rights and obligations in respect of their child .

On DATE the applicant sought an interim measure regulating child contact arrangements .

On DATE the applicant withdrew his submission .

On DATE the first hearing took place . ORG adjourned the hearing pending its receipt of the criminal file , ORG file as well as the administrative file from ORG .

On DATE ORG issued an interim measure .

On DATE the applicant appealed .

On DATE ORG decided on the appeal .

On DATE the applicant requested an expert opinion .

On DATE ORG appointed an expert psychologist .

On DATE ORG imposed a fine on the applicant ’s wife for non - appearance before the expert .

On DATE the applicant ’s wife appealed against the fine . ORG dismissed the appeal on DATE .

On DATE the applicant ’s wife challenged the expert on grounds of bias .

On DATE the expert submitted the expert opinion .

On DATE ORG dismissed the objection of bias .

On DATE the applicant ’s wife appealed .

On DATE ORG dismissed the appeal .

On DATE the second hearing took place . ORG decided to obtain a second expert opinion from an expert in GPE .

On DATE the applicant ’s petition was dismissed .

On DATE the applicant appealed .

On DATE ORG decided on the appeal .

On DATE the applicant challenged the NORP expert on grounds of bias .

On DATE ORG dismissed the objection of bias against the expert .

On DATE the applicant challenged the judge on grounds of bias .

DATE PERSON requested ORG on CARDINAL occasions to inform it whether the decision to dismiss the objection of bias had become final .

On DATE ORG received information that the above decision had become final .

DATE PERSON asked ORG on CARDINAL occasions for information on the status of the expert opinion .

On DATE ORG delivered the expert opinion to ORG .

On DATE ORG delivered the judgment .

On DATE the applicant submitted his statement in response to the defendant ’s appeal .

On DATE the case was transferred to ORG for a decision .

On DATE ORG decided to obtain a third expert opinion from an expert psychologist .

On DATE another expert was appointed due to the heavy workload of the expert appointed on DATE .

The proceedings are pending .

On DATE the applicant complained to ORG about the length of the civil proceedings .

On DATE ORG

ORG concluded that ORG had handled the case in an appropriate manner .


Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1 in respect of length of proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant brought a civil action against the company ORG ( “ the employer ” ) and the insurance company ORG in ORG ( PERSON ) seeking damages for a work - related injury in the amount of CARDINAL NORP kunas ( HRK ) .

The court held hearings on DATE and DATE and CARDINAL DATE .

In the period DATE the applicant filed CARDINAL rush notes urging the court to schedule a hearing and speed up the proceedings .

On DATE ORG gave judgment dismissing the applicant ’s claim . The applicant appealed on DATE to ORG ( Županijski sud u GPE ) .

On DATE the applicant applied to be exempted from the court fee for the appeal . Since it was ORG that was competent to decide on the applicant ’s request for exemption , ORG returned the case - file to it with a view to reaching a decision thereon . A hearing before ORG scheduled for DATE was adjourned since the applicant had not received the summons due to his change of address . The next hearing scheduled for DATE was adjourned owing to the illness of the judge assigned to hear the case . Lastly , a hearing at which the applicant gave a declaration of his income and assets was held on CARDINAL DATE . On DATE the applicant was served with the decision in his favour exempting him from the court fee for the appeal . The case - file was then sent back to ORG with a view to deciding on the applicant ’s appeal .

On DATE ORG dismissed the appeal . The judgment was served on the applicant on DATE . No appeal on points of law ( revizija ) lay to ORG against this judgment ( see paragraph CARDINAL below ) .

Meanwhile , on DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining about the length of the civil proceedings .

On DATE ORG dismissed the applicant ’s complaint . It held that the delay was attributable to the complexity of the case and the applicant ’s conduct . It found that the applicant had contributed to the length of the proceedings in that he had applied for exemption from the court fee only after he had appealed against the first - instance judgment .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

On DATE the LAW to LAW ( Zakon o izmjenama i dopunama PERSON o parničnom postupku , Official Gazette no . CARDINAL of DATE ) entered into force . They raised the statutory threshold for lodging an appeal on points of law ( revizija ) to ORG from HRK CARDINAL . That is to say that , from then on , for such an appeal to be admissible ratione valoris in non - commercial matters , the value of the subject matter in dispute had to exceed the last - mentioned amount . The LAW also provided for their immediate application to pending proceedings except to those cases in which an appeal on points of law had already been lodged .


No violation of Art. 6-1;No violation of Art. 6-1+P1-1;Violation of P1-1;Just satisfaction rejected (out of time)

ORG Mr PERSON , an architect , lives in GPE .

ORG On DATE the GPE municipal police ( vigili urbani ) sealed his flat , on the ground that he had infringed the town - planning regulations .

On DATE the GPE magistrate ( pretore ) confirmed the sequestration ( sequestro ) and criminal proceedings were instituted against the applicant . PERSON lodged CARDINAL applications for release of his property from sequestration on CARDINAL DATE and CARDINAL and DATE but they were dismissed on CARDINAL DATE and DATE for reasons of prevention and of preservation of evidence ( per fini preventivi e cautelari ) .

ORG On DATE the applicant sought an early hearing , pointing to the damage caused him by his being unable to enjoy the benefit of his property . The trial was initially set down for CARDINAL DATE but was postponed to CARDINAL DATE .

In a judgment delivered DATE , which was filed in the registry on DATE and notified on DATE , the magistrate imposed on PERSON , who was present when the judgment was delivered , a suspended sentence of CARDINAL days’ imprisonment and a fine of MONEY , without any entry in the criminal records , for having carried out works in his flat without a permit from the mayor ( concessione edilizia ) .

ORG The applicant appealed against this decision within DATE of its delivery and filed his pleadings on DATE ; the DATE period allowed for filing grounds of appeal began to run on DATE of service of the judgment . The hearing in ORG began on DATE . It was adjourned on DATE and CARDINAL DATE - on the first occasion at the request of ORG , whose doctor had ordered him to rest for DATE , and on the second occasion because his counsel was unable to attend . In the meantime , on DATE , the lawyer had already applied for the trial to be resumed .

ORG In a judgment of CARDINAL DATE , which was filed in the registry on DATE and became final and therefore enforceable on DATE , ORG held that the offence had been amnestied and the prosecution barred as a result of a presidential decree that had been issued on DATE . It did not , however , order that the property should be released from sequestration , nor was the judgment notified to the applicant , who had to obtain a copy from the registry on DATE . In the meantime , by a letter of CARDINAL DATE , ORG had applied for a hearing to be fixed .

ORG On DATE the file was sent to the magistrate for placing in the archives . In a letter of DATE to the President of ORG , which was sent on DATE to the magistrate ’s court ( pretura ) , the applicant again sought to have his property released from sequestration . He complained of the bad state of his flat .

ORG On DATE the registrar of the magistrate ’s court sent the file to the magistrate for execution of the judgment , that is to say release from sequestration . On DATE the magistrate held that he had no jurisdiction and ordered that the file should be returned to ORG .

ORG It arrived DATE . The central registry of ORG recorded the point raised regarding execution ( incidente di esecuzione ) and on DATE sent the file to the registry of ORG . On DATE and CARDINAL DATE Mr PERSON again sought to have his property released from sequestration .

ORG In an order of CARDINAL DATE , which was filed on DATE , sent to FAC on DATE " for execution of what was ordered in it " and served on the applicant on DATE , ORG allowed ORG application and also noted that the mayor had issued a permit in the meantime .


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in GPE .

On DATE the applicant , along with CARDINAL other individuals , instituted civil proceedings against his former employer seeking payment of certain sums of money .

On DATE ORG declared the action inadmissible because the plaintiffs ' lawyer had failed to submit a full list of plaintiffs and their addresses , a specification of their claims and a power of attorney .

NORP On appeal , on DATE the GPE ORG quashed the first - instance decision and remitted the case . It found that the plaintiffs ' lawyer had supplied the requested documents and that the case was suitable for examination on its merits .

On DATE the applicant filed a complaint with ORG concerning the length of the proceedings . ORG forwarded that complaint to the president of ORG , who , having reviewed the case file , informed the applicant that the next hearing in his case was scheduled for DATE .

At the hearing held on DATE , the court decided to split the claims made by the various plaintiffs into separate proceedings and another judge was appointed to hear the applicant 's case . The newly appointed judge ordered the joinder of the applicant 's case to the initial case file , but was unable to obtain that file until DATE .

The court apparently held hearings on DATE , DATE , DATE , DATE and DATE .

On DATE the first - instance court gave judgment in the case and , according to the information provided by the parties to date , the proceedings are currently pending before the second - instance court following the applicant 's appeal .

NORP The relevant provisions of this legislation are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

Sections CARDINAL , CARDINAL and CARDINAL of this Code define abuse of office ( zloupotreba službenog položaja ) , judicial malfeasance ( kršenje zakona od strane sudije ) and official malfeasance ( nesavestan rad u službi ) as separate criminal offences .

Article CARDINAL of LAW ( Ustav PERSON ) , published in ORG of GPE ( ORG - no . CARDINAL ) , provided as follows :

“ Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .

Such damages shall be met by GPE or the public authority [ in question ] . ”

This LAW was repealed on DATE , which is when the “ new ” LAW ( published in OG RS no . CARDINAL ) entered into force .

The substance of LAW of LAW corresponds , in its relevant part , to the above - cited text of DATE LAW .


CASE OF RADIO FRANCE AND OTHERS v. FRANCE

No violation of Art. 7;No violation of Art. 6-2;No violation of Art. 10

The applicant company has its registered office in GPE . The other CARDINAL applicants were born in DATE and DATE respectively and live in GPE and FAC .

NORP In its issue no . CARDINAL , dated DATE , the DATE magazine ORG published an “ investigation ” headlined “ Vichy : Around the FAC ” . Several pages focused on Mr PERSON , under the headline “ DATE Revelations : PERSON , deputy to mayor PERSON on ORG from DATE , was Deputy Prefect at Pithiviers in DATE and DATE . In that capacity , he was responsible for maintaining order in the CARDINAL internment camps in his district , Pithiviers and GPE - la - Rolande ” . The article included the following passages :

“ ' It has to be said that , all political consideration set aside , ORG 's civil servants gave a remarkable example of efficient , skilful and honest administration . ' That good - conduct citation , awarded in DATE , does not come from PERSON , who has now been committed to stand trial in ORG for ' complicity in crimes against humanity ' . Those are the exact words used in L'illusion du bonheur , a book published ... by PERSON , a deputy mayor when PERSON ran ORG DATE , who knows his subject , since he was Deputy Prefect in Pithiviers , in the département of Loiret , in DATE and DATE . In that capacity he supervised the maintenance of order in the camp of that town , where CARDINAL of NORP were interned before being deported to FAC . Unlike PERSON and this is a significant difference between the CARDINAL cases – he did not order anyone to be arrested , interned or transferred to PERSON .

After the war PERSON enjoyed a brilliant career in GPE 's highest administrative spheres before turning to politics . He was to become a member of parliament for GPE from DATE to DATE , giving his allegiance to the ORG , which he never left . But it was on ORG , where he served as mediator from DATE to DATE that he spent the longest part of his career . He is a former ORG and since DATE has been the president of ORG in GPE .

Until now , he has always maintained that the internment camps in his district , Pithiviers , and GPE - la - GPE QUANTITY away , were not under his control . His main duties were to inspect the local districts and to compile ' general and confidential information ' files on local dignitaries . The Pithiviers camp ? ' it was not under my jurisdiction . I never set foot in it ' he told ORG magazine in DATE .

An outright denial which is , however , inconsistent with several documents not previously published which ORG has managed to obtain . Documents which clarify his field of activity .

... when he was appointed Deputy Prefect at Pithiviers on DATE ... the camps at Pithiviers and GPE - la - Rolande , originally intended for NORP prisoners of war , were already being used as internment camps prior to their inmates being deported , the first having left on CARDINAL DATE .

PERSON , who was to remain in office for DATE , took up his post in Pithiviers on DATE , that is , DATE before the departure , on DATE , of a fresh transport of NORP deportees .

On DATE a CARDINAL detainees arrested during house - to - house searches in the GPE region , including CARDINAL children DATE , were put on transport no . DATE and shipped off to FAC via Drancy , the camp to the north of GPE .

On DATE of their departure , PERSON informed the Prefect of his concerns about maintaining order . ' I hereby inform you that I have just been notified of the entrainment of CARDINAL NORP from the PERSON camp DATE from TIME at Pithiviers railway station , and that all the gendarmes in my district apart from CARDINAL officer per squad are therefore required to assist with the entrainment ... . ' ...

DATE , on DATE , PERSON did not hide his satisfaction when sending the Prefect the following report : ' DATE of DATE went very smoothly throughout my district . The limited police presence planned for the afternoon of DATE could not be deployed ... because all the gendarmes in the area , except for CARDINAL officer per squad , were required for the entrainment of the NORP detainees of the Pithiviers camp , whose departure I was suddenly notified of on DATE at TIME The entrainment was to take place DATE at Pithiviers station at the far end of the avenue de la PERSON where the communists had called on ... the inhabitants of Pithiviers to demonstrate at TIME , and I was concerned that some incidents might occur which could disrupt an orderly departure . But nothing of the sort happened and the town remained perfectly calm . ' ...

Then , in a ' DATE report ' drafted DATE for his superiors , he scrupulously went over the events again .

On DATE he reported in detail on the situation in the CARDINAL ' internment camps ' , as he headed the third paragraph of his report . ' The Beaune - la - Rolande camp , which has been empty since DATE , has been cleaned ' , PERSON stated . ' The conditions there are now excellent . CARDINAL transports of NORP passed through and spent TIME there before leaving for PERSON . There are only about twenty detainees left at the camp , doing maintenance work . '

PERSON went on : ' The Pithiviers camp had been occupied since DATE by CARDINAL NORP internees of all categories , NORP and foreign , men , women and children , some arrested during the DATE and DATE round - ups , others for having infringed the regulations of the occupying forces ( demarcation line , wearing the star of PERSON , etc . ) . All of them , except those married to NORP and a few mothers of young children , were placed on trains bound for GPE on DATE . Finally the last internees left Pithiviers in TIME for Beaune - la - Rolande so as to clear the camp , which was due to receive NORP internees . In fact this last NORP transport spent TIME in GPE before being sent on to PERSON on the orders of the occupying forces . '

PERSON was the last stop in GPE before they were deported to GPE and the final solution : their physical destruction . ...

On reading this dry civil servant 's prose , the Acting Prefect of PERSON , PERSON , expressed his satisfaction in writing . He was pleased with the orderliness which had prevailed during the entrainment of the deportees , who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers .

In an internal memorandum dated DATE – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture , who was responsible for organisation and surveillance : ' The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions . In any event , in his capacity as the government representative in Pithiviers , he has the right to monitor the proper functioning of the camps . Accordingly , it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect , so that he is not bypassed . ' ...

CARDINAL transports left from camps in Loiret DATE , DATE under PERSON 's responsibility .

In his DATE report , the Deputy PERSON expressed his concerns over the difficulty in maintaining order in GPE - la - Rolande , which was full of ' NORP and foreign NORP who have contravened the regulations of the occupying forces ( in particular , attempts to cross the demarcation line ) and whom the NORP police have sent to the GPE camp ' . As a conscientious official , PERSON went so far as to suggest : ' If there is a further rise in the number of internees , we should make plans to strengthen the security arrangements . '

In the same report , he pointed out that communists were gradually replacing the NORP in Pithiviers , though there were still CARDINAL of the latter on DATE compared with CARDINAL on DATE .

' The presence of this camp inside my district means that the sub - prefecture is receiving a number of letters asking for leave to visit and even for people to be released . I have had some standard - form replies drafted explaining that I have no power to take such measures and that only the ORG who took the internment decision has any authority in that respect . There is nothing to report from the camp , which is guarded most efficiently by a detachment of gendarmes ' , he wrote .

On DATE of the liberation of ORG , DATE , PERSON was present . He waved the tricolour from the balcony of Loiret 's prefecture . And he stood at the head of the prefecture steps to welcome PERSON , the commissaire de la PERSON sent by General PERSON . But that did not stop him being swept away in the subsequent purge . On DATE , DATE after awarding PERSON a ' certificate of participation in the Resistance ' , PERSON signed a decree removing him from office . The hero of Free France was acting in response to a decision of ORG based on a report from the Loiret departmental liberation committee stating that PERSON was ' a typical careerist , devoid of all moral scruples , not to be allowed to hold any kind of public office ' .

However , like many servants of ORG , PERSON claimed to have been playing a double game . He explained that he had worked for a ' network ' of ORG ... citing his activity on behalf of General PERSON intelligence service in GPE under the Occupation and the medals he had received as a result . He must have been persuasive , because when peace returned he was to be found once more as permanent secretary to various Ministers , before becoming a deputy prefect again in DATE and then prefect in DATE . ... ”

An interview with PERSON was also published as part of the investigation . It included the following statement by him :

“ ... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps . At that time I did not know who was interned there . There had been communists , at the time of the breaking of the PERSON - Soviet pact . And there were foreign NORP . We did not know their ultimate destination . We only knew that they were going to PERSON . Rumour had it that they were being sent to work in salt mines in GPE . We obviously knew that they were not going off on a pleasant holiday . But I did not learn of the existence of the extermination camps until DATE when the first deportees returned .

When I took up office , on DATE , all the transports except one had already left . ”

When the interviewer asked PERSON if he thought this “ renewed interest in those dark years ” was “ necessary for the young generations ” he replied : “ If NORP in DATE made mistakes , or sometimes committed war crimes , I think there is the discreet veil of history ... ”

At TIME on DATE the third applicant , who is a journalist with ORG ( a radio station controlled by the applicant company ) , broadcast the following report :

“ According to the DATE magazine ORG , a former deputy mayor of GPE supervised the deportation of CARDINAL NORP and foreign NORP in DATE . PERSON , now aged DATE , was Deputy Prefect of Pithiviers at the time . He admits that he organised the departure of a transport of deportees to PERSON . PERSON , whom General PERSON removed from office at the end of the war , claims to have been in the Resistance and subsequently rose through the ranks of the civil service . In his defence , the former deputy mayor of GPE DATE maintains , like PERSON , that he knew nothing of the fate of the deported NORP and says that the discreet veil of history should be drawn over the crimes of DATE . ”

The way in which ORG operates is for the presenter to broadcast live , with CARDINAL news bulletins and CARDINAL news flashes per TIME . He then breaks for TIME to update his information before going on air again . The above - mentioned broadcast was accordingly repeated by the third applicant and by other journalists CARDINAL times between TIME on DATE and TIME on DATE , in either the same or a slightly different form . However , the broadcasts systematically specified that the report was based on an article published in FAC . After TIME , a number of news bulletins and flashes mentioned the fact that , “ unlike PERSON ” , PERSON had never issued any orders for anyone to be arrested , interned or transferred to PERSON , sometimes adding that he was “ responsible only for keeping order ” .

On DATE , from TIME , several news bulletins and flashes ( broadcast at TIME , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and TIME ) mentioned that Mr PERSON denied the allegations published in FAC . According to the applicants , this point was made systematically after CARDINAL a.m.

Mr PERSON brought proceedings in ORG against the second applicant , who is publishing director of the applicant company ( the publisher ) , the third applicant and the applicant company as principal , accessory and civilly liable respectively for the offence of public defamation of a civil servant , contrary to sections CARDINAL , first paragraph , and DATE , first paragraph , of the Freedom of the Press Act of DATE ( “ the GPE ” ) .

In their defence , the applicants argued that the case under LAW was inadmissible , because PERSON had been retrospectively stripped of his status as a civil servant at the time of the ORG . They also contended that the prosecution 's case against the second applicant was inadmissible : the disputed statement had been broadcast live and its content could not therefore be construed as having been “ fixed prior to being communicated to the public ” within the meaning of section CARDINAL of LAW of DATE ( “ the DATE LAW ) . Moreover , they submitted that the third applicant had acted in good faith . In that connection , they argued that public interest in DATE had been revived by the news of the Papon trial ; that the third applicant had been in possession of the article published in FAC on DATE along with CARDINAL agency dispatches ; that it had been reasonable to link the cases of PERSON and PERSON because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers ; that the use of the conditional tense and the absence of any personal comment about Mr PERSON demonstrated the journalist 's caution ; and that ORG had reported Mr PERSON 's denials from TIME on DATE .

By a judgment of DATE , ORG ( Seventeenth Division ) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant . It fined them MONEY ( ORG ) each and ordered them jointly to pay ORG CARDINAL in damages . It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on GPE Info TIME during TIME period in DATE following the date on which the judgment became final .

With regard to the defamatory nature of the disputed allegations , the judgment reads as follows :

“ Mr PERSON is alleged ... to have personally played an active role in the deportation of NORP in his capacity as Deputy Prefect of Pithiviers . This allegation , which undoubtedly damages the honour of the civil party , is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before ORG to answer charges that he participated in crimes against humanity DATE and that of PERSON , with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period , over which he believes that ' the discreet veil of history should be drawn ' .

The fact that it was specified that , ' unlike PERSON , PERSON did not issue any orders for anyone to be arrested , interned or transferred to PERSON ' in no way detracts from the seriousness of the charge levelled at the civil party ; the same can be said of the use of the conditional tense throughout the broadcasts .

The allegations in question also cast doubt on Mr PERSON 's membership of the Resistance , which was reported as a mere ' claim ' on his part , and suggested that he had been stripped of his status by General PERSON at the end of the war . These words also damage the civil party 's honour and reputation . ”

The court found that Mr PERSON had never lost the rank of Deputy PERSON , and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority . It found that section CARDINAL of LAW was therefore applicable .

With regard to the good faith of the third applicant , the court found as follows :

“ There being a presumption that defamatory statements are made in bad faith , it is for the defendants to prove their good faith .

It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence ; such journalistic practice is particularly to be deprecated , because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty .

This is what happened with Mr PERSON : having assumed that the enquiries made by his fellow journalists at FAC were reliable , PERSON simply repeated the magazine 's allegations against the civil party without checking them .

As evidence that he had carried out a serious investigation , PERSON told the ORG that he had been in possession of the article published in FAC on DATE , and of CARDINAL agency dispatches ; however these dispatches , which simply quoted large sections of the magazine article , could not , without more , provide the journalist with a legal defence .

The journalist also produced the documents mentioned in FAC : the ORG 's memorandum of DATE , PERSON notes of DATE and DATE and the DATE reports for DATE and DATE ; however , these documents did not give him grounds for asserting that PERSON , Pithiviers Deputy Prefect , had supervised the deportation of CARDINAL NORP or that he had admitted having organised the departure of a transport of NORP deportees .

Neither the memorandum from the Prefect of PERSON dated DATE specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant , nor the memorandum of DATE to the ORG signed by PERSON and expressing his concerns about keeping order on DATE in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the ' entrainment of CARDINAL NORP ' , nor the report drawn up by PERSON on DATE on the events of DATE , which had been ' perfectly calm ' , prove that PERSON , Deputy Prefect , had played a personal part in the organisation and departure of that transport for PERSON . In fact , what these documents show is that he complained of having been notified only belatedly of the ' entrainment of CARDINAL NORP ' , that he did not receive copies of all the instructions sent to the camp commandant , a memorandum from the ORG having been required to ensure that he was not ' bypassed ' and that his concern was to maintain order outside the camps .

PERSON DATE reports for DATE and DATE do not carry any more evidential weight in this respect ; while the first mentions that most of the NORP in the Pithiviers camp had been ' entrained ' on transports bound for GPE on DATE ; while both report on the occupancy rate of the CARDINAL internment camps situated in his district and thus establish his ' responsibility in principle ' for the camps ( using Mr PERSON 's formula ) ; while they keep the Prefect informed of relations with the NORP forces and the circumstances in which the anti - NORP laws were being applied and certainly show that Mr PERSON was performing his functions of Deputy PERSON under the Occupation with zeal and determination , and without being troubled by too many scruples , they nonetheless do not prove that he played a personal part in the deportation of NORP or that he organised the departure of a transport of NORP deportees .

Turning to the other documents cited by the defence , namely a letter dated DATE from the secretary - general for the police on the PERSON d'Etat to ORG and the latter 's reply dated DATE , and a memorandum dated DATE from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent , they can not be regarded by the ORG as having any evidential weight , since they are merely summarised on a plain sheet of paper .

In short , the documents in PERSON possession did not give him grounds for alleging that Mr PERSON was guilty of having participated in crimes against humanity .

Nor did these documents entitle the presenters who came on air after TIME on DATE to repeat the allegation that the plaintiff had supervised the NORP internment camps of Pithiviers and GPE - la - Rolande and the maintenance of order in both camps .

Lastly , the testimony of PERSON recounting the dramatic circumstances of the various round - ups of NORP men , women and children , the conditions in which they were transferred to and arrived in the CARDINAL camps of Pithiviers and GPE - la - Rolande , and the dramatic change in public opinion which coincided with these events , does not prove that Mr PERSON played any part in the organisation of these deportations .

While being aware of the professional constraints imposed by the need to break news rapidly , which is inherent in the very nature of radio , the ORG notes that the journalists , far from merely reporting raw news objectively , endorsed the interpretation adopted by some of their fellow journalists , while going further by making a connection with the ' Papon case ' , no doubt with the intention of making the story more sensational .

The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations .

In relation to the allegation that PERSON was not a genuine member of the Resistance , the ORG finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities , which in any event have been vouched for by PERSON , the leader of the PERSON network , by Colonel PERSON and by several people of NORP descent who described the help he had given them during the Occupation .

For all of the above reasons , the ORG is unable to accept that [ the third applicant ] acted in good faith . ”

The court found the second applicant , in his capacity as publishing director , not liable for the first broadcast , which had been made live by the third applicant on DATE at TIME It found , however , that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air , and considered that such “ systematic repetition of the disputed statements ” should be construed as “ rolling broadcasting ” within the meaning of CARDINAL of LAW . The court concluded as follows :

“ [ The second applicant ] , as publishing director , whose duty it is to control what is broadcast on the channel for which he is responsible , is therefore liable in law as principal for the offence of defamation . ”

NORP On appeal by the applicants , ORG ( ORG ) upheld the judgment of DATE by a decision of CARDINAL DATE .

On the question of the defamatory nature of the offending bulletin 's content , it ruled as follows :

“ Words may be defamatory as the result of an insinuation , a question or an assertion . In addition , words must be assessed both in terms of their intrinsic meaning and in the light of their context .

Attributing to Mr PERSON responsibility for supervising the deportation of CARDINAL NORP and organising their despatch to PERSON was plainly an attack on his honour and dignity . The defence arguments ... tending towards proving the truth of the facts is not relevant here , quite apart from the fact that no evidence to that effect has been adduced . Moreover , comparing PERSON position to that of Mr Papon , who had indeed just been committed for trial in ORG , also necessarily had a defamatory resonance .

The same defamatory classification must also be given to the passage ' [ Mr PERSON ] ... claims to have been in the Resistance ' . Coming as it does between the reference to his being sacked by General PERSON and the comparison to Mr Papon , this can only insinuate that Mr PERSON 's assertion was false . ”

On the question of good faith , the judgment said :

“ Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim , without any personal animosity , after a serious investigation and in temperate language .

There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation , particularly as regards one of the main dramas of that time , the deportation and extermination of NORP , is perfectly legitimate .

Nothing in the file reveals any particular animosity on the journalist 's part towards the civil party .

On the other hand , the preliminary investigation was singularly lacking in rigour . The civil party has rightly observed that PERSON began to broadcast his remarks at TIME on DATE , in other words when the issue of FAC dated CARDINAL and CARDINAL DATE had just come out .

In seeking to establish their good faith the defence cite CARDINAL dispatches ( ORG , ORG and ORG ) which mentioned the article in FAC and the content of a television programme in which Mr PERSON had taken part . But the use of agency dispatches as one 's main source , especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made , if not to conduct an investigation , then at least to check the information . In addition , the wholly gratuitous assertion that Mr PERSON admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view .

As regards the debate about whether PERSON had been a member of the Resistance , ORG rightly noted that the documents produced by the defence were not sufficient evidence to the contrary , whereas his participation has been attested to by the leader of the ORG network , PERSON , by Colonel PERSON and by a number of persons of NORP origin who have drawn attention to PERSON courageous attitude .

Moreover , the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal , and here it should be noted , as clarification of this point may be helpful , that neither the use of the conditional tense pleaded in defence , nor the mention – very late in DATE of PERSON denials , affect the gravity of the allegations made in dispatches broadcast CARDINAL times .

The content of the documents which the defendants learned of in FAC is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect PERSON 's attitude at the time of the departure of the last transport of NORP deportees on DATE .

The memo of DATE from the deputy prefect to his prefect ... said : ' I have just been notified of the entrainment of CARDINAL NORP ... DATE ' , and he complained that he would therefore not have sufficient manpower to control a communist demonstration .

The same deputy prefect sent a memo , dated DATE , informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly .

The memo of DATE from the Prefect of PERSON seems to echo his subordinate 's concerns about being informed in stipulating that the deputy prefect ' in his capacity as the government representative ... , has the right to monitor the proper functioning of the camps ' .

The reports sent by PERSON to his prefect in DATE and DATE describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them .

The witness evidence heard in court did not provide any additional information about Mr PERSON 's duties .

As to the other documents produced in court , ORG rightly found , for reasons which ORG endorses , that they did not appear to have been in the defendants ' possession at the time when the statement was broadcast . Moreover , they do not necessarily weaken PERSON argument , since they include one memo he wrote on DATE to the Prefect of NORP about improving the food and bedding in the camps . It ends with the following sentence : ' Although the management and administration of the camps does not form any part of my duties , I wish to bring this state of affairs to your attention ... '

All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government . They do not support , without overstating the case , an assertion that Mr PERSON supervised the camps or played a role in the deportation of the NORP .

The plea of good faith is accordingly rejected . ”

ORG noted the following in relation to the liability of the second applicant under LAW :

“ ... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control . But this can not be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect . It is significant in this respect that such steps were taken from TIME , when the content of the offending statement was amended . Moreover , it would be stretching the concept of prior fixing to contend that it must involve mechanical recording . Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means . Therein lies the difference from ' live ' broadcasting involving no repetition . ”

Moreover , by way of civil remedy , the court ordered the following announcement to be read out on GPE Info TIME during TIME period in DATE following the date when the judgment became final :

“ By a judgment of ORG ( ORG ) , PERSON PERSON , journalist , and Mr PERSON , publishing director of ORG , were each fined ORG and ordered to pay damages for having defamed Mr PERSON , former Deputy Prefect of Pithiviers . This judgment follows the broadcasting , on DATE and DATE , of news bulletins falsely alleging that Mr PERSON had played a part in the deportation of CARDINAL NORP and wrongly casting doubt on his membership of the Resistance . ”

On the subject of the broadcasting of the above announcement , the judgment reads as follows :

“ The ORG is minded to uphold the order for the broadcasting of an announcement by ORG , which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of ORG CARDINAL and CARDINAL of [ the Convention ] ...

The ORG does not agree , because freedom of expression under LAW [ the LAW ] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others , which is the case here . It is true that the effect of this order , as indicated by the defence , will be to reduce the ' editorial space ' available to ORG , but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect .

Lastly , it would be wrong to deny the claimant , whose rights are equally important , the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press .

Further , nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of LAW ... ”

The applicants appealed on points of law . They submitted that ORG had failed to apply the principle whereby the criminal law must be strictly interpreted , in that it had extended the scope of the presumption raised by CARDINAL of LAW ( whereby the publishing director is liable as principal where “ the content of the offending statement has been fixed prior to being communicated to the public ” ) to cover a “ communication method based on repetition ” . Relying in particular on Articles CARDINAL and CARDINAL of the Convention , they also complained of the order in the disputed ruling to broadcast the above announcement on ORG , the essence of their argument being that “ there [ was ] no basis in legislation for the publication of a judicial announcement , which [ was ] nothing less than punishment for a civil wrong ” .

By a judgment of DATE , ORG ) dismissed the appeal for the following reasons , inter alia :

“ ... In finding the publishing director liable as principal for the offence created by LAW of DATE , ORG both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been , with the exception of the first bulletin , systematically broadcast on a rolling basis in exactly the same or in condensed form over a TIME period .

It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public .

The court applied the law correctly in so ruling .

The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section CARDINAL [ cited above ] . ...

... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law , they may issue such an order by way of a remedy at the request of the civil party . Such a remedy , when ordered in a form achievable under the technical constraints of the medium in which publication is ordered , [ does not breach ] the LAW provisions cited in the appeal . ”

The announcement referred to in paragraph CARDINAL above was broadcast on GPE Info DATE and DATE .

The relevant provisions of LAW of the Freedom of the Press Act of DATE ( as amended ) are as follows :

Section CARDINAL

“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be an offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches , shouts , threats , written or printed matter , placards or posters .

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . ”

Section CARDINAL

“ Defamation by reference to the functions or capacity of CARDINAL or more ministers or ministry officials , CARDINAL or more members of CARDINAL of the CARDINAL legislative chambers , a civil servant , a representative or officer of the law , a minister of religion in receipt of a ORG salary , a citizen temporarily or permanently responsible for a public service or discharging a public mandate , a member of a jury or a witness on the basis of his witness statement [ in speeches , shouts or threats made or uttered in public places or meetings , or in written or printed matter , drawings , engravings , paintings , emblems , images or any other written , spoken or pictorial medium sold or distributed , offered for sale or exhibited in public places or meetings , or on placards or posters on public display , or in any audiovisual medium ] shall be punishable [ by a fine of MONEY ] .

Defamatory statements about the private lives of the above persons shall be punishable under section DATE below . ”

Section CARDINAL

“ The following persons shall be liable , as principals , in the following order , to penalties for offences committed via the press :

Publishing directors and publishers , irrespective of their occupation or title ... ”

Section CARDINAL of LAW of DATE states :

“ In the event of CARDINAL of the offences provided for in LAW of the Freedom of the Press Act of DATE being committed by an audiovisual operator , the publishing director ... shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public .

When the ... publishing director is prosecuted , the maker of the statement shall be prosecuted as an accessory .


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

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

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

On an unspecified date in DATE the applicant , a doctor , lodged a private criminal complaint against GPE with ORG . The applicant claimed that GPE had publicly defamed him by saying that the applicant had administered the wrong medicine to GPE ’s mother and that she had died as a result . The applicant also lodged a civil action for compensation for non - pecuniary damage which he claimed he had suffered .

By a judgment of CARDINAL DATE the court acquitted GPE and dismissed the applicant ’s civil action , finding that the defendant had publicly stated that the applicant had given an unspecified medicine to his mother and had failed to inform him of its nature . The court noted that this statement did not contain any accusation that the applicant had caused the death of the defendant ’s mother .

The judgment was pronounced publicly in the presence of the applicant and his counsel . The court noted that it was subject to appeal within a DATE period following its pronouncement . The court further noted that in case of an appeal a hearing before FAC was to be held on DATE . The judgment was pronounced without reasons , which were to be delivered later .

The applicant alleged that on several occasions he checked at the court ’s registry in order to determine whether the reasons for the judgment had been delivered , but to no avail . It appears that on DATE the applicant brought the issue to the attention of the president of the court by submitting a written request to be served with the reasons .

On DATE the applicant obtained the reasons .

On DATE the applicant filed an appeal against the judgment . In a decision of CARDINAL DATE ORG returned the appeal to the applicant as having been submitted after the expiry of the DATE time - limit .

The applicant ’s appeal against this decision was dismissed by ORG on DATE . The court stated that the deadline for lodging an appeal had been DATE . It noted that the timelimit for delivering the reasons was not related to the CARDINAL for lodging an appeal . The court concluded that the belated delivery of the reasons had not impaired the applicant ’s right to make an effective appeal , as he could have lodged an appeal and presented additional arguments at a later stage .

At the relevant time , an appeal was to be lodged with the firstinstance court within DATE of the pronouncement of the judgment ( LAW ) . The court would check whether the appeal satisfied the procedural requirements and , if so , send it to the court of appeal ( LAW ) .

The appeal against the judgment might be detailed , containing specific grounds for contesting the judgment , or open - ended ( бланкетна жалба ) . In substance , an open - ended appeal might contain only a declaration that the first - instance judgment was wrong ( реш. на ВтАС № CARDINAL от CARDINAL по ORG д. № DATE г. , and реш. № CARDINAL от DATE г. PERSON по в. н. о. х. д. № DATE г. , ORG ) . The practice of submitting open - ended appeals in criminal cases was , and continues to be , common in GPE ( see , among many others , реш. от CARDINAL г. на ВтАС по в.н.о.х.д. № CARDINAL г. н.о. ; реш. № CARDINAL от CARDINAL г. на ВтАС по в. н. о. х. д. № CARDINAL/CARDINAL г. , ORG ; and реш. от CARDINAL по PERSON № CARDINAL на АС Варна ) .

Until the hearing and regardless of whether a detailed appeal or an open - ended appeal was filed , the appellant could submit additional written pleadings in order to supplement his appeal ( LAW of LAW , реш. от CARDINAL г. на ВтАС по в. н. о. х. д. № CARDINAL г. , н. о. ) .

The court of appeal was obliged to examine the lawfulness and the correctness of the entire judgment , regardless of the grounds of appeal specified by the parties ( LAW ) . This state of affairs was valid even when , in the case of an open - ended appeal , the appellant did not supplement the appeal with additional arguments ( реш. от CARDINAL г. на ВнАС по ORG , ORG ; реш. от CARDINAL г. на ВтАС по в. н. о. х. д. № CARDINAL г. , н. о. ; and реш. от CARDINAL по в.н.ч.х.д. № CARDINAL/CARDINAL на ОС Пазарджик ) .

The above - mentioned provisions were reproduced almost verbatim in the new Code of Criminal Procedure DATE ( “ the DATE Code ” ) ( Articles CARDINAL § CARDINAL , CARDINAL , CARDINAL § CARDINAL ) .

At the relevant time , in factually or legally complex cases the reasons for the judgment could be delivered after the judgment but not DATE following its pronouncement ( Article CARDINAL of the DATE Code ) .

According to the case - law of ORG , the periods for lodging an appeal and for delivering the reasons for a judgment run independently and each party to the proceedings is duty - bound to observe the time - limit for lodging an appeal . This is so because the party could file an appeal and supplement it with additional arguments once the reasons for the judgment were delivered ( реш. на ORG № CARDINAL от CARDINAL по н. д. № CARDINAL г. , III н. о. ) .

Pursuant to DATE , the reasons for the judgment may be delivered after the judgment but not DATE following its pronouncement . In factually or legally complex cases the reasons for the judgment may be delivered within DATE after its pronouncement ( Article CARDINAL ) .