CASE OF BERGENS TIDENDE AND OTHERS v. NORWAY

Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings

The first applicant , PERSON , is a DATE newspaper published in GPE and is the largest regional newspaper of the NORP west coast . The second applicant , Mr PERSON , is its former editorinchief and the third applicant , PERSON , is a journalist employed by the newspaper . They were born in DATE and DATE respectively and both live in GPE .

Dr NORP is a specialist in cosmetic surgery and received his training at ORG in GPE in DATE . As from DATE he worked in this field from his privately owned practice in GPE .

On DATE , following the opening of a new clinic by PERSON , PERSON published an article , prepared by the third applicant , which described PERSON work and the advantages of cosmetic surgery .

Subsequently , the newspaper was contacted by a number of women who had undergone such operations by PERSON and who were dissatisfied with the treatment received .

NORP On DATE , PERSON published on its front page a text entitled “ Beautification resulted in disfigurement ” , which included the following passage :

“ ' We paid CARDINAL of [ NORP ] kroner [ ORG ] and the only thing we 've achieved is to be disfigured and ruined for life . ' PERSON has spoken with CARDINAL women who have an almost identical story to tell about their experiences at a cosmetic surgery clinic in GPE . All CARDINAL underwent breast surgery at the clinic , and the results were extremely bad . They are warning other women . ”

The caption under a photograph of a woman 's bust read :

“ This woman was tormented by her large breasts . Surgery resulted in disfiguring scars and a disproportionate bust . ”

The inside of the paper contained , together with a large colour photograph showing a woman 's breasts with disfiguring scars , the following article :

“ Women ruined for life after ' cosmetic surgery '

' I paid ORG CARDINAL,CARDINAL and all I achieved was disfigurement . '

' To say that I bitterly regret it is an understatement . I 've been ruined for life and I 'll never be “ my old self ” again . '

' The pain was unbearable . I was transformed into an anxious , trembling nervous wreck in the course of DATE , and I thought I was going to die . '

These are the statements of CARDINAL different women interviewed by PERSON . All of them , aged DATE and resident in GPE , share in common the fact that they have undergone cosmetic breast surgery , performed by PERSON , CARDINAL of CARDINAL specialists in plastic surgery with a private practice in GPE .

The CARDINAL women – who wish to remain anonymous – describe their ordeal as nightmarish . They all have internal and external scarring which they will have to live with for the rest of their lives .

' I was operated on in DATE , following DATE of great psychological problems due to a small and sagging bust after I had had several children ' , said CARDINAL of the women , who is DATE .

Swollen bust

' Immediately after the operation , I noticed there was something quite wrong . One of my breasts had swollen up and become hard and painful . When I consulted PERSON , he trivialised the whole matter , saying that it was nothing to worry about . It would pass . And I was told that under no circumstances should I contact another doctor .

For DATE I lay at home in a dazed state of pain , swallowing ORG tablets as though they were sweets . I have never in my life taken anything stronger than PERSON on the odd occasion . My bust swelled to grotesque proportions and was so sore that the slightest touch was unbearable .

It was impossible to get hold of PERSON He had gone to GPE , and I did n't dare contact another doctor . It 's only now that I realise how foolish I was . '

Squirting prosthesis

The doctor 's receptionist finally managed to get in touch with PERSON on the telephone in GPE , explained the gravity of the situation and made him travel directly from the airport to his office the night he returned home .

' By this stage the pain was unbearable , and both then and later on I reacted strongly to the hard - handed treatment I was subjected to ' , says the woman . ' As I lay on the operating table , he ripped open the stitches and tore out the implant without any form of anaesthetic , so the contents of the prosthesis squirted over him , his assistant and myself . '

The woman 's husband sat in the waiting - room , listening to her cries of pain . The whole treatment took TIME , and there was no talk of a rest afterwards . It was just a case of getting up from the operating table and walking out .

DATE

' He gave us the feeling the whole time that we were an inconvenience and were taking up his precious time . '

It took a long while for the woman to recover from her traumatic experience . She had to report sick and was away from work for DATE . Her husband , too , was obliged to apply for leave from his job to stay at home with her for a period of time .

During this time she had a prosthesis in CARDINAL breast , and despite the daunting experiences she had been through , she contacted PERSON again to have a silicon implant inserted in the empty breast . This was repeatedly postponed , and she finally decided to terminate her relationship as a client of PERSON and contact another plastic surgeon . In doing so , she demanded her money back for the unsuccessful operation , and after some discussion he agreed to reimburse CARDINAL of the costs .

No receipt

He did so with the following comment : ' I hope now that we are finished with one another for good . You have never been a patient here , and I have never seen you . '

Since then the woman has also reacted to the financial side of PERSON activities . She had been informed beforehand that she would have to present the money – ORG DATE in cash , on DATE of the operation . Even a cheque would be unacceptable , and she was not given a receipt .

Painful infection

A CARDINAL-year - old woman tells a similar story .

' I wanted an operation because I have great problems with a disproportionately large , heavy bust that has caused shoulder and back pains . I checked first to see whether it was possible to get this type of operation done at the hospital , but was told that at best it would mean waiting DATE . I therefore ended up at PERSON .

The result was DATE of continuous , painful infection and a bust that looked much uglier than it had done earlier .

I paid ORG CARDINAL,CARDINAL and the only thing I achieved was to do damage to myself ' , says the woman .

Disfiguring scars

The infection that occurred immediately after the operation caused the stitches to open , and septic sores developed . Once the wounds had healed , she was left with abnormally large , disfiguring scars , which prompted her to contact PERSON again and ask for the damage to be repaired .

He agreed to do so , and a new operation was scheduled . The woman , who had asked for DATE off work in connection with the surgery , arrived at the agreed time but found the doors to the clinic locked . She returned home with the matter unresolved . When she called him privately DATE he was impertinent and threatened her directly , and the conversation ended with him slamming down the receiver , the woman said .

After this she gave up and she has not had any contact with the doctor since .

Waste

' But it was a bitter feeling when I realised that I had invested a lot of time , money and mental energy in something that turned out to be not only a complete waste , but also did more harm than good . '

This woman , too , says that she was asked to pay cash and was not given any form of receipt .

Deformed

The third woman interviewed by PERSON had a similar experience . The woman , DATE , says : ' I had a breast augmentation done and DATE after the operation I discovered that something was wrong with one of my breasts . It was uneven , pointed to the right , and was rock - hard and sore . It 's still hard and uneven DATE . I feel completely deformed , and I dare not even think of showing myself on a beach , for example . '

Complications

This woman , too , experienced complications after surgery , chiefly in the form of constantly recurring so - called ' capsules ' , i.e. part of the prosthesis hardened and had to be broken up again .

' After DATE I just could n't take any more . By then I had lost confidence in Dr NORP and his methods of treatment ' , says the woman , who , like the CARDINAL other women , reacted to his demand that she pay cash without being given a receipt .

She is also deeply shocked about what she feels is the offhand and nonchalant way in which she was treated on her first visit to the doctor 's .

' I had an appointment at TIME , but was told that he did n't have time to see me . Would I rather come back another day ? But I was so mentally prepared that it would be done DATE and I simply refused to go . It was now or never . '

Bitter regrets

' After TIME wait I finally lay on the operating table , and if there is anything I now regret , then it 's precisely that .

The operation was unsuccessful , I understood that immediately . After DATE of repeated “ treatment ” and CARDINAL - hearted attempts by the doctor to remedy the blunder , however , I could n't stand it any more and I gave up . '

Unbearable

The woman has made no effort to get back the money she paid . ' I could n't bear the thought of fighting – because I knew it would be a struggle . '

DATE have passed since the calamitous surgery , but she has not yet been able to collect herself sufficiently after the frightening experience and contact another doctor to have her breasts operated on again .

' I have to do it – because I ca n't live with this . However , the bad experiences are so ingrained that I have n't collected myself enough to do anything about it ' , she says . ”

Articles similar to the CARDINAL of CARDINAL DATE quoted above , accompanied by large colour photographs , were published on CARDINAL , DATE , DATE and CARDINAL DATE , describing in detail how women had experienced their situation after allegedly failed operations and a lack of care and follow - up by PERSON Some of the articles invited women to complain to the health authorities and to institute proceedings against the doctor . CARDINAL article stated that ORG ( PERSON ) would commence an investigation , that PERSON might lose his licence to practise and that the question of a police investigation had been raised . Brief summaries of the contents of the articles may be found in the judgment of DATE of ORG ( PERSON ) quoted in paragraph CARDINAL below .

In an editorial of CARDINAL DATE , entitled “ Medical power ” , PERSON stated :

“ It is of course with satisfaction that we see health authorities now carry out a thorough investigation of the activities which the GPE breast doctor has been performing for DATE . This is the least that one could expect . It must be in the interest of DATE the patient 's , the authorities ' and also the doctor 's DATE to have clarified whether the methods of treatment applied meet professional standards . The fact that the case has serious implications also because it has aesthetic , moral , but also basically down - to - earth economic consequences , serves to underline the need for a thorough investigation .

It is nevertheless a puzzle that it took a whole series of newspaper articles , powerful notices and assertive journalism to make the medical health bureaucracy react . Complaints to the doctors ' own professional association have not produced results and neither the regional nor the municipal health authorities have taken any initiative before the patients , in despair , came out with their stories of suffering to PERSON . Again one wonders what is required in order to break down the strong professional ties within the medical profession and to preserve the interests of patients . In any event , it justifies the reflection that patients , over DATE , feel threatened by fear of ' reprisals ' . Irrespective of whether this fear is imaginary or real , it is telling of the relationship of power which still exists between doctors and patients .

Breaking down the myths and building confidence are crucial conditions for the process of healing . Therefore it is important to have a full clarification of the case in all its dimensions .

Unfortunately the initiative for this investigation does not originate from the medical milieu , but from the weakest party : the patient . ”

On DATE PERSON had also produced , at the bottom of the page containing the impugned article mentioned in paragraph CARDINAL above , an article containing an interview with PERSON , plastic surgeon at a GPE hospital , entitled “ Demanding form of surgery – Small margins between success and failure ” . It stated :

“ ' There are borderline cases , but generally speaking aesthetic / psychological surgery , what is commonly referred to as “ cosmetic surgery ” , does not fall within the public health - care authorities ' responsibility . ' ...

– ' Do many have unrealistic expectations and believe that all their problems will be solved if their imperfections are straightened out ? '

' It happens and then their problems are more on the psychological than the physical level . '

Information is important

' Not least for this reason it is important that the patients DATE or the clients ... rather – are properly informed in advance . Frequently , information must be provided in order to reduce the expectations DATE so that the person concerned does not feel disappointed with the result . But having said this , most people are satisfied with their new appearance ...

You have the same problems , primarily with respect to the dangers of bleeding and infection , in this field as in any other field of surgery , and the general requirements as to precautionary measures and medical safety are as strict . '

Technically demanding

' Aesthetic surgery can be technically demanding and there are often small margins between success and failure . Not least for this reason it is important to possess wide experience of plastic surgery from ordinary hospitals before one starts one 's own private business as a specialist . But the transfer of experience may be occurring in both directions . ' ... ”

The issue of CARDINAL DATE also contained an interview with PERSON “ There will always be dissatisfied patients ” , which read :

“ ' I can not comment on these particular cases , in part because I am bound by the general obligation of confidentiality , in part because I do not know the details of the cases . All I can say is that within plastic surgery , like in any other field of surgery , there is a certain margin of error and there will always be dissatisfied patients . '

It is PERSON who states this to PERSON in his comments to the complaints from the QUANTITY women .

' Complications in the form of hardened breasts ... occur in PERCENT of all breast operations and the risks of bleeding and infection are the same in plastic surgery as in any other form of operation . But I should like to emphasise that all patients are informed in advance of the possible dangers and of the fact that the result of the operation is not always as successful as one might expect ' , says PERSON , who moreover underlines that CARDINAL dissatisfied patients is a relatively small number when compared to the great size of his business which he has been running over DATE ... ”

According to the third applicant 's statement to ORG in the proceedings mentioned below , when approaching PERSON in connection with the above interview , she had invited him to comment on the QUANTITY women 's allegations and had informed him that they had given their consent to release him from his duty of confidentiality . He had replied that he was bound by his general duty of medical confidentiality , which applied irrespective of whether the patient had given such consent . PERSON , in those proceedings , denied the third applicant 's version of the facts , stating that he was absolutely sure that she had not informed him that the patients had lifted his duty of secrecy .

On DATE PERSON published CARDINAL articles commenting on the critical articles published DATE .

In the first article , entitled “ The press – the pillory of DATE ” , PERSON recalled the history of witch - hunts during DATE and described PERSON coverage of the accounts by PERSON dissatisfied patients as a modern form of witch - hunt conducted by the press . She stated that the doctor was unable to reply ; being prevented by his duty of secrecy he could not refer to the large group of patients who were satisfied and could not substantiate that they constituted the vast majority of patients .

The second article , written by ORG and entitled “ There are always CARDINAL sides to a case ” , stated :

“ We are concerned with the recent focusing on PERSON business . We are a group of QUANTITY persons who all have in common that we are or have been patients of PERSON We are satisfied with the treatment received , not least the service and care provided during post - surgery treatment and follow - up .

A case always has CARDINAL sides and by these words we hope that we have conveyed our views on and experiences of this doctor . ”

Following the publication of the articles by PERSON , CARDINAL former patients submitted complaints against PERSON to the health authorities . On DATE Mr Eskeland , the medical expert appointed to evaluate the situation , concluded that there was no reason to criticise Dr NORP 's surgical treatment of the patients . Mr PERSON stated that the complications complained of were common in surgery and were bound to occur from time to time , but were not due to shortcomings in PERSON surgery . In CARDINAL case , he criticised PERSON for having travelled abroad without informing a relatively newly operated patient . Mr PERSON observed that , in the light of the large number of patients treated by PERSON CARDINAL DATE the number of complaints had been moderate . Bearing in mind that the articles published by PERSON had invited PERSON former patients to complain , it was surprising that not more patients had done so .

On DATE ORG decided not to take any further action , finding that PERSON had not performed improper surgery .

After the publication of the newspaper articles , PERSON received fewer patients and experienced financial difficulties . He had to close down his business in DATE .

In the meantime , on CARDINAL DATE , PERSON instituted defamation proceedings against the applicants , claiming damages . By judgment of CARDINAL DATE ORG ordered the applicants to pay PERSON a total of ORG CARDINAL,CARDINAL,CARDINAL in respect of pecuniary and non - pecuniary damages and costs . The court considered that PERSON economic loss would amount to MONEY and that an assessment had to be made on a discretionary basis . It observed that , while the criticism against PERSON had been made in an unjustified manner , destroying the public 's confidence in him as a surgeon , the criticism had been caused mainly by his own conduct . The court deemed it appropriate to make an award corresponding to PERCENT less than the amounts claimed .

The applicants and PERSON appealed against the judgment to ORG ( lagmannsrett ) , which found for the applicants , stating , inter alia :

“ After hearing the evidence , the High Court finds that the articles give an essentially correct rendering of the women 's experiences as they themselves lived through them . As witnesses , they gave the impression to some extent that the newspapers had moderated their accounts . The High Court finds them credible and finds no reason to believe that their subjective experiences are not commensurate with what objectively took place – in other words they had reasonable grounds for feeling the way they did and as described by the newspaper . ORG does not exclusively base itself on these CARDINAL women 's statements . It finds it also proven that the newspaper was contacted by a number of other women giving similar stories . Subsequently , after the article of DATE ] had been published together with an appeal by GPE to women to join in filing an action , many more women got in touch . ORG finds it established that the number of women [ who did so ] was CARDINAL . This is based mainly on statements taken from [ the second and third applicants ] and GPE , and some of these women have also appeared as witnesses before ORG and have given statements . These constitute only a minor part of all the women who contacted PERSON and GPE A total of CARDINAL dissatisfied women have given statements , as has the husband of CARDINAL woman . However , it is largely the same story that is repeated again and again in the statements : complications did occur or the result was bad and the follow - up treatment provided by PERSON was felt to be unsatisfactory and seemed rushed with little interest , some irritation and unwillingness . Several women told how PERSON seemed insensitive to their mental as well as physical pain and discomfort . Some had the feeling that PERSON would rather be finished with them after he had operated and had not organised post - operative treatment properly . Some of the women were worried that PERSON might not have given them proper post - operative treatment . What is also being repeated by many of the women is that they were struck by the fact that PERSON was keen when it came to the financial side ; he wanted payment in advance , was unwilling to take cheques , and gave no receipt unless especially asked to do so ...

On the basis of the above the High Court finds it proven that PERSON ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given , and in several instances had reason to feel offended by PERSON behaviour . Moreover , the High Court finds that the experiences described in the article of DATE ] are representative of those made by many other women .

Thus the High Court finds that the QUANTITY women referred to in the article of QUANTITY May [ DATE ] had not been especially sensitive and had not had exaggerated expectations , but that their stories were sober and reasonably subjective accounts of what had happened . Having regard to the information at hand about complaints made by other women , ORG also finds that this is not simply a case of CARDINAL or CARDINAL odd exceptions . As far as PERSON is concerned , it can reasonably be established that it is a question of unsatisfactory behaviour , which occurred quite often in the cases where something happened to necessitate an extra effort after the operations . That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them . It is hardly a question of more than a minority of the cases . And it must be stressed that nothing has been said to prove that there really was a failure as regards NORP 's surgical competence .

But the fact that the unsatisfactory behaviour occurred in a number of cases must provide a basis for allowing criticism of PERSON to come to light in the newspaper . Reference is made to what has been said above about the right of the general public and the consumer to be kept informed and their right to react by staying away to be on the safe side . It should be pointed out that the people who contacted the newspaper at the outset did so as a reaction to PERSON article on DATE ] , an article which presented a picture of NORP 's business without mentioning the drawbacks . PERSON claims that , in view of the article of CARDINAL DATE , it felt obliged to let their criticism be heard , which ORG finds very understandable .

On DATE ] , PERSON ran an article in which GPE described her own experience of treatment at PERSON clinic and urged women in a similar situation to join forces in suing the doctor . The High Court finds it proven , in the same way as for the QUANTITY women who were described on DATE , that GPE 's experiences were recounted correctly and that her subjective feelings were reasonably grounded on what had occurred . The same applies to what was stated on DATE about the experience of a ' DATE GPE lady ' . ORG is also satisfied that what was stated on DATE about telephone calls to GPE ( ' Storm of telephone calls ' ) is correct ...

As far as the rendering of the women 's experiences is concerned , what was stated in PERSON is thus in all essentials correct . And their subjective experiences were liable to give a picture of how treatment by PERSON could turn out , not only in rare exceptional cases ...

The striking part about the statements that PERSON has challenged is that they report in strong language on the results of treatment provided by PERSON : ' disfigurement ' , ' ruined for life ' , ' mutilated ' and the like . It is sufficiently clear that the statements are here describing the result of PERSON treatment . But there is nothing in the statements suggesting a lack of surgical ability on PERSON part . And one must assume that newspaper readers were aware that a poor result of an operation need not be due to a lack of surgical skill . It has been submitted that the use of expressions like ' ruined ' , ' was disfigured ' , etc . , brings to mind actions that are aimed at ruining and disfiguring and that the reader is therefore immediately made to believe that some person PERSON R. – is guilty of such conduct . ORG does not find that , from a linguistic point of view , the statements apply to anything other than the purely objective result .

Another question is whether the statements are misleading , because they give the impression that the consequences were more serious than they actually were . ORG can not see that this is the case DATE especially when bearing in mind that it is the manner of reporting of the women 's subjective opinions which is at stake . ' Disfigured ' means having an ugly mark of some significance on one 's body , and in the opinion of ORG the women who use this expression according to PERSON had good reason for doing so . Much the same can be said about ' mutilated ' . Presumably , ' ruined ' must be understood as bearing a somewhat stronger expression , but must be justified in the case of women whose breasts have large scars or have become lopsided , hard , different , or tender to touch , in view of the effect this must have had , not only on the woman 's relationship with her husband but also in many other respects – one can imagine what it must mean not to be able to give one 's child or grandchild a hug because of tender or hard breasts . According to what the ORG finds established on the witness evidence , it was , amongst other elements , against the background of such results that the newspaper had used the expressions .

While the statements thus could not be said to amount to a direct allegation that Dr NORP lacked surgical abilities , PERSON did not make it clear either that there was no lack of ability . And both the individual statements and the articles in their entirety give the impression that it is being questioned whether PERSON always provided treatment which was medically up to standard . In the light of the women 's information , however , this was a natural question to ask ; several of the women mentioned it , and anyone who reads the accounts alone would be inclined to ask that question . It can therefore not be unlawful for PERSON to air this question .

PERSON also complains that PERSON conducted a veritable campaign and persecution against him . ORG does not consider this to be the case . In particular , the newspaper should have the right to believe that women should think twice about consulting PERSON and to write articles with this in mind ...

In brief , the opinion of ORG can be summarised as follows :

In PERSON practice there were a not inconsiderable number of cases of poor followup and behaviour and the like , which gave many women reasonable grounds for feeling disappointed and badly treated . The High Court bases this assessment of evidence essentially on the women 's statements and comportment in court . PERSON was entitled to write about this and to repeat the women 's subjective experiences of the treatment . The newspaper did this in a manner which in all essentials was correct . In so far as the newspaper articles might have given the impression that there could be reason to question PERSON professional ability , this was no more than a suspicion for which his behaviour gave reasonable grounds , and which it must therefore have been right to report on . If this led to financial losses for PERSON , it was because of the extremely sensitive nature of the activities he was engaged in .

[ The applicants ] are therefore discharged from liability to pay damages , and ORG will not go into the question of the extent of PERSON financial losses .

Moreover , ORG does not find it possible to allow the claim for non - pecuniary damage and , referring to what has been stated above , does not find that any of the coverage of PERSON by PERSON was unlawful . ”

Dr NORP appealed against the above judgment to ORG . In his submission , ORG judgment was in principle correct , except that no reduction should have been made of the award on grounds of shortcomings on his part . In his opinion , even if ORG assessment of the evidence concerning lack of care and follow - up were to be accepted , this could only have a marginal effect on the amount of compensation . He maintained , inter alia , that the newspaper articles had amounted to a public execution of him as a plastic surgeon , by their strong emphasis on unsuccessful operations and by giving the readers the impression that he was incompetent . Furthermore , he had not been given a proper opportunity to reply to the criticism before the publications were printed . In his view , the defendants ' conduct had been grossly negligent .

The applicants emphasised that the impugned news coverage concerned above all the situation of quite a large number of women with whom the newspaper had been in contact , directly or indirectly , and who had complained about lack of care and follow - up after unsuccessful operations . They had also complained about a lack of information before the operations . The articles conveyed the women 's feelings and frustrations as expressed in their own words . Whether PERSON was a good or a bad surgeon had not been decisive .

On DATE ORG ( kjæremålsutvalget ) of ORG dismissed the appeal in so far as it concerned ORG assessment of the evidence relating to the issue of PERSON lack of care and follow - up of his patients , and allowed the appeal for the remainder to proceed .

NORP In a judgment of DATE ORG found in favour of PERSON and awarded him amounts totalling ORG in respect of damages and costs . Mr Justice PERSON stated , inter alia , on behalf of a unanimous court :

“ By way of introduction I note that newspapers , of course , have a right to emphasise questionable aspects of cosmetic surgery and to illustrate their presentation with information about unfortunate incidents . They should also be able to pinpoint critical aspects of an individual surgeon 's business and here the journalist in question must be granted a wide leeway for subjective considerations . But outright incorrect factual information of a negative character must be considered defamatory . The fact that the newspaper just repeats the accusations made by others will , according to established case - law , not in principle constitute a defence .

Accordingly , it will be necessary to consider the individual articles in order to establish their contents in relation to the rules on defamation . In interpreting the articles one should take as a starting - point the impression which they , as a whole , will make on the ordinary reader , while attaching greater weight to the headlines and the introductions than to the text presented in normal characters . ORG considered that the particularly interested reader would read the entire news report meticulously and thereby obtain a more balanced view than the reader who only takes a cursory look at the news report . I find it difficult to attach particular importance to this consideration . Even those who read the news report as a whole would easily be influenced by value judgments in headlines etc . Furthermore , the news report addresses the general public and will thus affect the doctor 's reputation as such . Unlike ORG , I can not see that one can generally assume that readers would be aware that a bad result of an operation is not necessarily due to a lack of surgical skills ...

The news report of CARDINAL DATE was based on the positive articles of DATE and the comments [ the newspaper ] had received from dissatisfied patients . It describes the situation of CARDINAL women who had undergone a breast operation involving silicon implants and who had subsequently experienced problems . On page one there is a CARDINAL - column headline ' Beautification resulted in disfigurement ' followed by a picture of a woman 's breasts disfigured by scars . In quotation marks it reads : ' We paid MONEY and the only thing we 've achieved is to be disfigured and ruined for life . ' Inside the newspaper an entire page is reserved for the news report . There is a headline covering CARDINAL columns ' Women ruined for life after cosmetic surgery ' . The same picture as on the front page is printed CARDINAL columns . Below the picture it is written : ' Enormous scars , wrinkled breasts and a long painful inflammation were the consequences of the cosmetic surgery on this woman ' . The article commences with CARDINAL points in bold print , which read :

' I paid ORG CARDINAL,CARDINAL and all I achieved was disfigurement . '

' To say that I bitterly regret it is an understatement . I 've been ruined for life and I 'll never be “ my old self ” again . '

' The pain was unbearable . I was transformed into an anxious , trembling nervous wreck in the course of DATE , and I thought I was going to die . '

In the article it appears from the women 's statements that they contacted PERSON following an inflammation and other complications and that they were unhappy with the treatment they received . I understand this to relate both to the service and the result of the treatment .

At the bottom of the page there is an interview with PERSON with the headline ' There will always be dissatisfied patients ' . In the course of the proceedings , it has been submitted that [ the third applicant ] had contacted PERSON on DATE and had asked him to comment , stating that the CARDINAL women had told her that they had released PERSON from his obligation to observe professional secrecy . However , referring to this obligation , PERSON had refused to comment on specific cases .

At the bottom of the page there is furthermore an interview with another specialist in cosmetic surgery ... with the headline ' Demanding form of surgery – Small margins between success and failure ' .

DATE , on DATE ] , a new article appeared . On the front page a headline covering CARDINAL columns reads ' Action against the breast doctor ' . Inside the newspaper there is a headline covering CARDINAL columns ' Institute proceedings against the doctor ' . It is the former patient [ GPE ] who appears and explains about experiences similar to the QUANTITY women from the articles published DATE . She invites everybody in the same situation to get together in a case against PERSON There is also an interview with ORG [ Fylkeslegen ] who states that dissatisfied patients may complain to him . Furthermore , there is an article covering CARDINAL columns with the headline ' The doctor must provide receipts ' . Here the complaint is made that PERSON allegedly requested payment without providing receipts therefor . It is indicated that this might interest both the tax authorities and the social authorities .

In the article of CARDINAL May [ DATE ] the front page contains a CARDINAL - column headline ' ORG DATE breasts ruined ' . The headline is repeated over CARDINAL columns inside the newspaper with a small amendment without importance to its contents . Here a woman explains how she underwent CARDINAL breast operations by PERSON with a bad result . Further , there is a headline covering CARDINAL columns ' Control virtually impossible ' followed by an article in which the Chief County Tax Inspector [ GPE ] is interviewed . Covering CARDINAL columns there is a framed article with the headline ' Telephone storm : to the extent I could not sleep ' . It is GPE who recalls how she received telephone calls from a number of women who recounted very ' strong ' stories about their experiences with PERSON

In the articles of DATE ] this is followed up . The front page shows a headline covering CARDINAL columns ' Telephone storm from the persons operated on ' . Furthermore there is a picture covering CARDINAL columns of CARDINAL of the breasts of a former patient , PERSON , where the point is that the stitches were not removed , in addition to disfiguring scars . Inside the newspaper there is a headline covering CARDINAL columns ' Telephone storm following criticism against fashion doctor . Had no idea we were so many ' . GPE recalls in an interview that she has talked to CARDINAL persons who all have frightening experiences to contribute . CARDINAL of these cases are explained . Further , there is a threecolumn picture of PERSON 's breasts . Connected thereto is a CARDINAL - column headline ' PERSON ( DATE ) was operated on in DATE . The stitches are still there ' . The article explains that she contacted PERSON office after the operation in order to have the stitches removed but was told to do this herself , as a pair of appropriate pincers was not available . Further , there is an article with the headline covering CARDINAL columns ' Probably no investigation ' , in which ORG is interviewed .

In the last articles of CARDINAL May the front page contains a headline covering CARDINAL columns ' Breast doctor is being investigated ' . It is stated that , according to the acting health director , ORG would immediately contact the Chief County Physician in order to carry out a thorough investigation of PERSON and his practice , and the newspaper draws attention to the question whether the doctor may lose his licence . Inside the newspaper there is a CARDINAL - column headline related to the same operation . Furthermore , there is a similar headline ' Can not do anything ' : PERSON of ORG tells the newspaper that the association can not examine complaints about the doctor 's medical practice but only complaints which relate to the doctor 's behavioural and humane treatment of patients .

The first question , which arises when evaluating the series of articles , is whether the criticism of PERSON may be characterised as an accusation and what its contents may be . On the one hand , PERSON maintains that he is accused of malpractice and that insufficiencies in respect of his work as a surgeon will be of central importance . The defendants maintain on the other hand that the criticism does not concern this but relates to a lack of information , care and follow - up treatment which is a part of the medical treatment . ORG found that evidence had been submitted proving that deficiencies in care and follow - up treatment had occurred . Since the appeal concerning the evaluation of evidence on this point has been refused , ORG is bound by the evaluation made by ORG .

The articles concern the situation of women who have experienced complications after an operation or when the original operation failed . They are in despair due to the result of the treatment and complain about the reluctance and carelessness on the part of PERSON as regards rectifying what went wrong . In my opinion the articles in [ the newspaper ] appear at the same time to be a strong attack on PERSON qualifications as a cosmetic surgeon without taking sufficiently into account the usual risk of unsuccessful operations . The statements that the women were disfigured and ruined for life and the many other strong statements , in particular in the articles of DATE , which set the tone for the other articles , can hardly be understood otherwise than as referring to a great extent to the result of the treatment where the surgical element is essential . This is also how ORG , ORG and Professor PERSON understood the articles . Initially it appears that [ the newspaper ] was of the same opinion . In an editorial of CARDINAL DATE satisfaction is accordingly expressed with the fact that the health authorities would now make a thorough examination of a ' breast doctor from GPE ' in order to ' clarify whether the methods of treatment which are used comply with professional standards ' . Since it must have been apparent that the articles would completely destroy his business , it may also be questioned whether [ the newspaper 's ] series of articles concerning PERSON could be explained in any other way than that they reflected [ the newspaper 's ] opinion that the circumstances involved reckless surgical activity which ought to be brought to the attention of the public .

In these circumstances DATE contrary to the findings of ORG – I have reached the conclusion that the articles contain an accusation against PERSON that he performed his surgical activities in a reckless way DATE an accusation which I must hold to be incorrect .

The next question is whether the resulting defamation should , for special reasons , not be considered to be unlawful . Among other things the newspaper has referred to its particular duty to attend to the interests of consumers and to the fact that the accusation against PERSON as a whole concerning improper treatment was nevertheless to a great extent correct . However , PERSON has criticised the newspaper 's handling of the case and has furthermore referred to LAW .

When a newspaper makes such strong criticism as in this case I consider that PERSON ought to have had the possibilities of a proper defence . No time element prevented this . When approached on DATE , PERSON could not make any statements about the concrete cases without being released by the patients themselves from his duty to maintain professional secrecy , and he did not have a duty to contact the patients himself for that purpose . I also find that [ the third applicant ] – and the newspaper DATE must be criticised for a lack of balance in the articles and for using unnecessarily strong and , to some extent , misleading expressions . That [ the third applicant ] was quoting the interviewees is no excuse for completely disregarding PERSON right to the protection of privacy . That the women had a subjective and strong emotional point of view to what they had experienced is understandable . But it is another matter to publish their statements to a large group of readers who would expect that these , at least in their essentials , covered the objective truth . Even though there is reason to give a wide scope to freedom of expression in order to enable newspapers to fulfil their function in society , I can not but reach the conclusion that the line has been overstepped . ... I see no reason to go into the issue of LAW .

The submission that the main content of the accusation has been proven is based on ORG assessment of the evidence as far as lack of care and follow - up are concerned .

ORG assessment of the evidence on this point can be seen from remarks spread over several pages of its judgment , especially at pp . CARDINAL to CARDINAL . On p. CARDINAL it stated :

' On the basis of the above the High Court finds it proven that PERSON ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given , and in several instances had reason to feel offended by PERSON behaviour . '

Furthermore , at p. CARDINAL it held :

' As far as PERSON is concerned , it can reasonably be established that it is a question of unsatisfactory behaviour , which occurred quite often in the cases where something happened to necessitate an extra effort after the operations . That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them . It is hardly a question of more than a minority of the cases . And it must be stressed that nothing has been said to prove that there really was a failure as regards NORP 's surgical competence . '

In these circumstances I must conclude that the essential elements of the accusations to be found in the articles concerning PERSON have not been proven , since the alleged deficiencies as regards the surgical activities , as set out in the articles , clearly overshadow the deficiencies concerning care and follow - up treatment . Furthermore , the accusations are unlawful .

In my opinion there can be no doubt that the articles have caused considerable financial losses , in addition to non - pecuniary damage , for PERSON It would have been strange if [ his clinic ] had survived the very negative comments in the articles of [ the newspaper ] . From a commercial point of view cosmetic surgery is very sensitive to anything which might shatter the potential patients ' faith in the operating doctor . The defendants must have been aware of this .

The calculation of PERSON loss involves many elements of uncertainty . In no circumstances could he automatically rely on continuing a thriving and profitable business as a private cosmetic surgeon for the rest of his life until reaching the age of retirement . Even a neutral , objective and , from any point of view , appropriate criticism would have been very damaging to him ...

Dr NORP shall be granted compensation under section CARDINAL of LAW DATE [ Skadeserstatningsloven – Law no . CARDINAL of CARDINAL DATE ] from [ the first applicant ] in respect of damage , loss of future income and suffering . As regards the CARDINAL last points , the ORG has a wide discretion according to [ the applicable legislation ] . But also as regards the first point , PERSON own conduct may be taken into consideration ...

... I have reached the conclusion that the compensation for the damage done , i.e. loss of income plus interest from DATE until this judgment , ought to be fixed at ORG CARDINAL . As regards the other requests for damages submitted by PERSON ... I consider that this should be fixed on an equitable basis at ORG CARDINAL .

Compensation in respect of loss of future income is fixed at ORG CARDINAL,CARDINAL . Further , the non - pecuniary damage to be paid by [ the first applicant ] is fixed at ORG CARDINAL . When fixing reparation , regard has been had to the exceptional pressure which PERSON has endured over a long period of time due to the series of articles .

The non - pecuniary damage to be paid by [ the second and third applicants ] is fixed at ORG CARDINAL,CARDINAL each . ”

Finally , ORG ordered that the first applicant pay PERSON MONEY and that the second and third applicants each pay him ORG CARDINAL for his costs in the domestic proceedings , plus certain interest with respect to PERSON costs in ORG . In accordance with the latter , the first applicant paid an additional ORG CARDINAL,CARDINAL , and the second and third applicants each paid ORG CARDINAL,CARDINAL in interest .

NORP Under NORP defamation law , there are CARDINAL kinds of responses to unlawful defamation , namely the imposition of a penalty under the provisions of LAW , an order under LAW declaring the defamatory allegation null and void ( mortifikasjon ) and an order under LAW DATE ( Skadeserstatningsloven – Law no . CARDINAL of CARDINAL DATE ) to pay compensation to the aggrieved party . Only the latter was at issue in the present case .

Section CARDINAL of the aforementioned Act reads :

“ A person who has injured the honour or infringed the privacy of another person shall , if he has displayed negligence or if the conditions for imposing a penalty are fulfilled , pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable , having regard to the degree of negligence and other circumstances . He may also be ordered to pay such compensation for non - pecuniary damage as the court deems reasonable .

If the infringement has occurred in the form of printed matter , and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection , the owner and publisher are also liable to pay compensation . The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation ... ”

Conditions for holding a defendant liable for defamation are further set out in LAW of LAW , ORG and CARDINAL of which provide :

“ LAW . Any person who by word or deed unlawfully defames another person , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding DATE .

Article CARDINAL . Any person who , by word or deed , behaves in a manner that is likely to harm another person 's good name and reputation or to expose him to hatred , contempt , or loss of the confidence necessary for his position or business , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding one year . If the defamation is committed in print or in broadcasting , or otherwise under especially aggravating circumstances , imprisonment for a term not exceeding DATE may be imposed . ”

A limitation to the applicability of LAW follows from the requirement that the expression must be unlawful ( rettstridig ) . While this is expressly stated in LAW , LAW has been interpreted by ORG to include such a requirement .

In a civil case concerning pre - trial reporting by a newspaper , ORG found for the newspaper , relying on the reservation of lawfulness ( rettsstridsreservasjonen ) , even though the impugned expressions had been deemed defamatory . It held that , in determining the scope of this limitation , particular weight should be attached to whether the case was of public interest , having regard to the nature of the issues and to the kind of parties involved . Regard should be had to the context in which , and the background against which , the statements had been made . Moreover , it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject matter and the object of the case ( PERSON , p. CARDINAL ) .

Further limitations on the application of LAW are contained in LAW , the relevant part of which reads :

“ CARDINAL . Punishment may not be imposed under Articles CARDINAL and CARDINAL if evidence proving the truth of the accusations is adduced ... ”


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

The applicant was detained for interrogation on DATE . On CARDINAL DATE ORG ordered his formal arrest .

On DATE , ORG found the applicant guilty of membership of the ORG , involvement in the bombing of a junior officer ’s house and attempted murder . The court sentenced him to DATE and QUANTITY months’ imprisonment . The court ordered the applicant ’s conditional release .

On DATE ORG upheld the lower court ’s judgment .

Meanwhile , on DATE the applicant was detained for the second time and on DATE was formally arrested .

On DATE ORG No . CARDINAL found the applicant guilty of separatist acts and sentenced him to life imprisonment .

On DATE ORG upheld ORG judgment .

On DATE the applicant requested ORG No . CARDINAL to sentence him on the basis of the principle of multiplicity of sentences .

On DATE ORG No . CARDINAL accepted the applicant ’s submissions .

ORG No . CARDINAL sent its final decision to ORG in order to have its decision of DATE executed .

On DATE ORG objected to the decision to apply to the applicant the principle of multiplicity of sentences and requested ORG to contest the decision or , alternatively , to forward its objection to ORG .

On DATE ORG sent the correspondence of ORG to ORG No . CARDINAL .

On DATE ORG No . CARDINAL accepted the objections of ORG and cancelled the earlier decision on multiplicity of sentences . ORG No . CARDINAL concluded that the multiplicity of sentences principle was only to be applied in circumstances where a person is convicted of several crimes . As regards the applicant , the court found that he had no right to invoke the multiplicity of sentences principle since his first sentence in respect of which he was conditionally released had already been executed . The court relied on PERSON no . CARDINAL which provides that if a person is conditionally released his sentence is considered to have been executed .


The applicants , PERSON , Mr PERSON and PERSON , are NORP nationals who were born in DATE respectively . The second and the third applicants live in GPE in GPE . The first applicant passed away on DATE . By letter of CARDINAL DATE the second applicant informed the ORG that he wished to pursue the application also on her behalf , with the consent of the first applicant 's heirs .

The applicants are represented before the ORG by PERSON , a lawyer practising in GPE .

The first CARDINAL applicants are the third applicant 's paternal grandparents . The parents of the third applicant and of her brother NORP , born in DATE , were not able to provide steady care for their children because of their drug addiction . During DATE of their life , the children were raised by their parents , their maternal grandparents and by the first CARDINAL applicants .

On DATE ORG requested ORG ( ORG ) to take appropriate measures with respect to the children 's care .

On DATE , during a first hearing , the children 's parents and ORG agreed that the children should live with their father , who was at that time undergoing therapy . Accordingly , ORG abstained from taking measures with respect to the children 's guardianship .

On DATE ORG informed ORG that the children 's father had dropped out of therapy and that both children had been placed in the care of a foster family .

On DATE the ORG heard the children 's parents and grandparents . Both parents expressed the wish that the children should be raised by the first and the second applicants .

On DATE the court - appointed expert PERSON submitted an expert opinion . He noted that both children had lacked steady relationships and care during DATE . As a result , the third applicant had developed behavioural disorders . While there was no doubt that the first and the second applicant would entertain a loving relationship with the children , the expert feared that they might have difficulties to cope with both children . The expert also noted that the first and second applicant had not demonstrated that they acknowledged their own contribution to their son 's ( the children 's father 's ) drug addiction . They had stated , on the contrary , that the educational counsellors had assured them that they had done “ everything right ” .

On DATE ORG , following the expert opinion , withdrew the parents ' custody rights and appointed ORG as guardian .

On DATE the first CARDINAL applicants lodged a complaint with a view to being appointed guardians themselves .

On DATE the third applicant 's father lodged a complaint in support of the first and the second applicants ' request .

On DATE the applicants submitted further pleadings and requested ORG ( Landgericht ) to issue an interim order assuring that the siblings remained in their current foster family , alternatively that they were not separated , further alternatively to revoke ORG right to decide on the children 's residence .

On DATE ORG asked ORG whether the siblings were still staying with the same foster family .

On DATE the first CARDINAL applicants informed ORG that they had entered into negotiations with ORG with the aim of reaching a friendly settlement . Accordingly , ORG was asked not to pass a decision on the request for interim measures .

On DATE the third applicant 's father withdrew his complaint .

On DATE ORG asked the first and second applicants ' counsel whether an agreement had been reached .

On DATE ORG judge had telephone conversations with ORG and the applicants ' counsel . He noted that the first and the second applicant did not yet wish to withdraw their complaint and that their counsel proposed to suspend the proceedings .

On DATE ORG asked the first and second applicant 's counsel on how they wished to proceed with their complaint . The presiding judge noted that a further suspension of the proceedings could not be justified .

In DATE NORP was placed in the first CARDINAL applicants ' household , while the third applicant remained in a foster family .

By letter of CARDINAL DATE the first CARDINAL applicants informed ORG that the endeavours to reach a friendly settlement had failed and that the third applicant had been given into the care of another foster family . They requested the ORG to continue the proceedings and to grant them ORG a time - limit to submit further reasoning by DATE , which they later requested to be extended until DATE .

By letter of DATE the first CARDINAL applicants submitted further pleadings . They submitted an expert opinion , according to which there was no indication that the first CARDINAL applicants would have difficulties to cope with the task of raising both children . They further declared that they did not pursue anymore their main request for an interim measure of CARDINAL DATE and the first alternative request .

On DATE ORG requested ORG to comment on the applicants ' submissions within a time - limit of DATE .

On DATE ORG stated that the third applicant should remain in the foster family .

On DATE the first CARDINAL applicants requested ORG to accelerate the proceedings . They further complained that ORG did not comply with its obligation to supervise the visiting rights .

On DATE the Judge Rapporteur heard the third applicant within her foster family .

On DATE the Judge Rapporteur heard the first CARDINAL applicants and the siblings ' maternal grandparents .

On DATE and DATE the first CARDINAL applicants requested to be granted leave to submit further comments .

On DATE ORG decided that the Judge PERSON should hear the third applicant 's mother , who was at the time serving a sentence in GPE prison . This was carried out on DATE .

On DATE the first CARDINAL applicants submitted their comments on the mother 's hearing .

On DATE ORG submitted further comments .

On DATE ORG requested the case - file from ORG , which reached ORG by CARDINAL DATE .

On DATE the first CARDINAL applicants informed ORG that their rights of access to the third applicant had been extended from DATE to once DATE . Further access rights had been denied . In view of the fact that a further lapse of time could actually weaken the applicants ' position , they requested ORG to accelerate the proceedings .

By decision of DATE ORG discharged ORG as NORP 's guardian and appointed the second applicant as his guardian . It rejected however the first and second applicants ' complaint with respect to the third applicant 's guardianship . ORG found that the first and the second applicant were well suited to raise NORP However , it would not be in the third applicant 's best interests to be deprived of her current foster family . The passages regarding the third applicant 's development read as follows :

“ According to the expert PERSON 's opinion , which concurs with the content of the casefile , ORG had not been able to build steady and supportive relationships during DATE of her life . She had been taken care of by continuously changing attachment figures , including her mother , her maternal grandparents , her father , her paternal grandparents , and finally the first foster parents . When examined by the expert , she already showed considerable behavioural disorders , such as a lack of distance ( PERSON ) , an inability to bond ( ORG ) and an inability to adjust ( fehlende GPE ) . As [ the first CARDINAL applicants ] had told the expert , she walked up to anybody and would not accept to be told anything . This had been confirmed by the maternal grandparents and [ the first foster mother ] . The latter added that ORG did not show any inhibitions concerning her contact with men , that she followed and even kissed them . At the beginning of her stay with the foster family , she had shown distinct rocking motions , could not accept limits , put everything into her mouth and had a phase of spitting . During the subsequent time she intensively smeared around with excrement . She was also very jealous of her brother . Both children lacked a DATE routine and had to learn how to play .

After ORG had stayed for DATE in the care of the [ first ] foster family , a new change of attachment figure occurred by her placement in the [ second ] foster family . As [ the second foster mother ] reported on the occasion of ORG 's hearing , ORG continued to show considerable behavioural disorders . She appeared mask - like , was “ just a friendly child ” , did not show sorrow or pain and lacked any sense of distance . Furthermore , she was hyperactive and unable to adjust . She fell down on straight paths , which , as [ the foster mother ] supposed , was owed to the fact that her mind was so restless that she was unable to control her movements . Ireen had a totally disordered day and night rhythm . She was temporarily very restless and demanded permanent attention , but also to be set limits . She was now able to abide by simple rules . Ireen suffers from neurodermatitis , which DATE according to [ the second foster mother ] had been aggravated in situations of stress .

The statements of [ the second foster mother ] show that the behavioural disorders which had been found by the expert PERSON , who attributed them to her unsteady socialisation , persisted after she was taken into the household of [ the second foster family ] . ORG 's behaviour during her hearing showed that she had since developed positively and in particular that she had learned to adjust . She followed [ the foster mother 's ] requests and propositions without opposing to them . She did not try to raise special attention ... The hearing and observation of the child made it clear that she had settled well into the foster family and that she had obviously bonded with her foster parents ... ”

ORG concluded that , given the third applicant 's lack of socialisation during DATE of her life and her positive development in the second foster family , where she had stayed for DATE , it could not be justified to deprive her of this stable environment .

On DATE the first CARDINAL applicants lodged a further complaint with ORG ( Oberlandesgericht ) with a view to being granted guardianship of the third applicant . They argued that ORG had failed to hear expert opinion , to hear the interested parties before the whole chamber and to appoint a curator ad litem ( PERSON ) to represent the third applicant during proceedings . They further requested ORG to pass an interim order granting them the right to determine the third applicant 's residence .

On DATE the first CARDINAL applicants submitted CARDINAL additional pages of reasoning and requested ORG to establish that ORG had failed to respect their right to a trial within a reasonable time .

On DATE the first CARDINAL applicants requested ORG to accelerate proceedings and to pass a decision on their request for an interim order .

On DATE ORG rejected the request for an interim order on the grounds that it would soon pass a decision in the main proceedings and that a change of the third applicant 's attachment figures would be contrary to the child 's best interests .

On DATE ORG quashed the decision of DATE and remitted the case to ORG . It found that ORG had failed to raise evidence by expert opinion on the relationship between the third applicant and her foster parents . ORG rejected the applicants ' request of CARDINAL DATE to establish the allegedly undue length of proceedings for lack of a legal basis . It further ordered ORG to appoint a curator ad litem ( PERSON ) , to safeguard the third applicant 's interests during proceedings .

On DATE and CARDINAL DATE the first CARDINAL applicants requested a swift processing of the proceedings in view of the fact that the third applicant still remained with a foster family .

On DATE ORG decided to hear expert opinion and appointed a curator ad litem to represent the third applicant .

On DATE the expert informed the court that she had agreed with the first CARDINAL applicants and with the foster parents that the third applicant should also be examined with respect to her behaviour during and after DATE which she would spend with the first CARDINAL applicants . Accordingly , she would submit her expert opinion by DATE .

On DATE the expert submitted her expert opinion . She found that the foster family , especially the foster mother , had succeeded to help the third applicant to develop from a disturbed , mentally disordered child , who had been unable to build relationships , into a healthy , self - confident DATE girl . This positive development was owed to the foster mother 's high qualification as a trained social pedagogue and the additional support offered by a professional institution devoted to the welfare of children .

In spite of the fact that the third applicant was very much attached to her foster family , she nevertheless expressed the strong wish to live with the first CARDINAL applicants . With regard to the fact that the child felt torn between the CARDINAL families , the expert recommended to postpone a final decision for DATE until the third applicant 's entrance into primary school . However , if a decision had to be taken earlier , the expert found that the first and the second applicant were very well able to raise both grandchildren , and that they were willing to seek professional assistance if this should appear necessary . Considering the third applicant 's strong wish to live with her grandparents , the expert recommended to place her into the care of the first and the second applicants .

On DATE the expert opinion was served on the parties for comments within DATE .

On DATE the first CARDINAL applicants submitted their comments and requested ORG to schedule a hearing .

On DATE the foster family organisation submitted their comments , according to which the third applicant should remain within the foster family , while maintaining regular contact with the first CARDINAL applicants .

On DATE the third applicant 's curator ad litem submitted her comments , according to which the expert had not sufficiently explored the first CARDINAL applicants ' ability to raise the third applicant . She further found that , while the child 's own wishes were not to be neglected , a child of DATE was not able to reach an autonomous decision on its circumstances of life .

On DATE the curator ad litem asked that the expert should be heard by the court .

On DATE ORG served the comments to the applicants for further comments within DATE .

On DATE the first CARDINAL applicants submitted comments drafted by a psychological expert , which supported the court - appointed expert 's conclusions .

On DATE and CARDINAL DATE the applicants requested ORG to promote the proceedings and to schedule a hearing .

On DATE the curator ad litem asked to be granted DATE leave for further comments .

On DATE ORG informed the applicants about its intention to schedule a hearing for DATE , which could not take place because of the expert 's illness . Should the expert be able to attend a hearing on DATE , the hearing would be scheduled accordingly .

On DATE the expert informed the ORG that she could appear on DATE .

On DATE ORG scheduled a hearing for DATE .

On DATE the first CARDINAL applicants submitted further comments .

On DATE ORG held a hearing , in which it heard the foster parents , the first CARDINAL applicants , the expert and the curator ad litem .

By decision of DATE ORG discharged ORG and appointed the first and the second applicants as the third applicant 's guardians .

In its reasoning , ORG referred to the expert 's finding that the first CARDINAL applicants were well suited to raise the third applicant and that the latter had expressed a strong wish to live with them .

On DATE the first and second applicant lodged a further complaint against the decision of CARDINAL DATE with the aim to be granted legal aid and to establish that the length of the proceedings before ORG had violated their rights under LAW and under LAW , CARDINAL § DATE and CARDINAL of the Convention .

On DATE the ORG refused to grant legal aid and rejected the complaint as inadmissible , maintaining that there was no provision in the procedural law which allowed establishing that proceedings had lasted too long .

On DATE the first and second applicant raised an objection ( NORP ) against the refusal to grant them legal aid , which was rejected on DATE .

On DATE the first and second applicant lodged a constitutional complaint in which they complained about the length of the proceedings before ORG and about the decision of ORG of DATE .

On DATE all CARDINAL applicants lodged a constitutional complaint complaining about the length of the proceedings before ORG , about the decisions of ORG of DATE and DATE and about the decisions of ORG of DATE and DATE .

On DATE the applicants requested ORG to grant them adequate compensation for the length of proceedings .

On DATE the applicants lodged a complaint in which they complained about ORG decisions of DATE and DATE to deny them legal aid .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicants ' complaints as being inadmissible . That ORG further found that there was no legal basis to grant the applicants compensation . This decision was served on the applicants on DATE .


The applicant , PERSON , is a NORP national of NORP ethnic origin who was born in DATE and lives in GPE . She was represented before the ORG by Mr M. PERSON , Mr PERSON , Ms L. K. N. Claridge , and Mr PERSON of ORG in GPE .

may be summarised as follows .

In DATE or DATE , a large team of police officers forcibly entered the applicant ’s house and arrested her son , PERSON . The applicant claims that , during arrest , they were ill - treated and that for a long time she was unable to discover the whereabouts of her son . She further claims that the police threatened her that if her son was not conscripted for military service he would be killed .

On DATE the applicant ’s son , PERSON , commenced his compulsory military service . He was stationed in ORG . The applicant submits that her son had told her that some of the soldiers , namely ORG , ORG and ORG , had threatened to kill him because he was from ORG and , therefore , a terrorist .

On DATE PERSON was found shot . He was taken to ORG , where he died . A post mortem examination was conducted on the deceased . The doctor considered that no autopsy was needed since the cause of death was internal bleeding from a single shot gun wound to the chest . No bruises were found on the body . The authorities were of the opinion that the applicant ’s son had committed suicide .

On DATE PERSON body was transferred to GPE for burial . The applicant claims that she was told several times not to uncover the body and to bury it within TIME . She further submits that when she uncovered the body she discovered that apart from the gun wound there was bleeding coming from the right eye , right ear and nose .

On DATE the applicant ’s husband complained to the ORG public prosecutor ’s office that his son had been killed by CARDINAL soldiers and claimed that his son ’s body had suspicious injuries . He requested an autopsy . On CARDINAL and DATE , the prosecutor heard the applicant ’s husband , who reiterated his previous submissions . In DATE the prosecutor decided that he lacked competence to investigate the complaints and transferred the case file to the GPE military prosecutor .

On DATE the body of Mr PERSON was exhumed . The autopsy confirmed that the cause of death was internal bleeding from a single shot gun wound to the chest . The autopsy report also found that there was a scaled graze of QUANTITY on the right ankle and that there were no other signs of bruises on the body . Finally , the report indicated that due to putrefaction of the body there was swelling , blood - clots and a change of colour in some parts of the body .

Acting by proxy , the GPE public prosecutor heard the applicant and her husband on DATE .

By a decision dated DATE , the GPE military prosecutor decided to discontinue the proceedings . In her decision , the prosecutor , relying on the testimonies of other conscripts , CARDINAL civilians , the ballistic report and the autopsy report , concluded that there was no indication which would lead her to conclude that the death of Mr PERSON had been caused by someone else ’s intent or negligence .

In the same decision the prosecutor filed an indictment against Mr GPE for the ill - treatment of subordinates . She submitted that , independent of the death of PERSON , it had been established by witness testimony that Mr ORG had slapped the deceased and CARDINAL other conscripts for not keeping a proper guard . She requested that Mr I.O. be charged and convicted under LAW .

On DATE the applicant objected to the prosecutor ’s decision to discontinue the proceedings . In her petition , the applicant submitted , in particular , that her son had not committed suicide but had been killed . She claimed that her son had told her that he had been threatened by Mr M.A.S. and Mr B.Y.Ö. She further complained about the contradictions between the post mortem examination and the autopsy report . In this regard , she submitted that the autopsy report had found a graze on her son ’s right ankle whereas the post mortem report had found no bruises on his body .

On DATE the applicant ’s objections against this decision were dismissed by ORG . This decision was served on the applicant on DATE .

In the meantime , Mr GPE was convicted under LAW and sentenced to a fine . This decision became final on DATE as no one appealed . The applicant was not a party to the proceedings .

The first letter concerning the application was submitted by the applicant ’s lawyers on DATE to ORG . After giving a brief description of the events and submitting without further specification that the applicant alleged a violation of ORG , DATE , DATE , DATE , DATE , CARDINAL and DATE of the LAW , the lawyers informed the ORG that they were assembling the necessary documentation in order to submit the full application . A number of official documents were attached to the first letter .

ORG acknowledged receipt and the case was given a provisional number .

On DATE the applicant ’s lawyers submitted the completed application form together with documents .

On DATE ORG informed the applicant ’s lawyers of certain shortcomings in the application , namely that the full application form had been submitted DATE , DATE and DATE after the first letter and requested that they provide an explanation of the reasons for the delay . The applicant ’s ORG attention was drawn to the LAW case - law on this point .

On DATE the applicant ’s lawyers submitted that the applicant and her family were subjected to constant intimidation and threats by the authorities , that the failure to investigate Mr PERSON ’s death constituted a continuing violation and that there were considerable delays in obtaining the documents pertaining to the domestic investigation .

On DATE , upon the receipt of a revised authority form , the application was registered . The applicant ’s lawyers were informed that the date of introduction of the application would be considered as having been CARDINAL DATE unless the ORG decided otherwise .