Violation of Art. 6-1;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE , at ORG at GPE , GPE , the applicants and another man , ORG , were convicted of illegally importing QUANTITY of cocaine ( with a street value of GBP CARDINAL ) into FAC , GPE , on DATE .

The applicants and Mr ORG had been under surveillance by officers of Her ORG and Excise for DATE prior to their arrest on DATE . On DATE the CARDINAL men were observed travelling to FAC . They did not leave the airport and almost immediately after arriving they checked in their luggage and returned to FAC . The second applicant ( henceforth , “ PERSON ) and Mr ORG travelled to GPE on DATE , and the first applicant ( “ PERSON ) went to GPE on DATE . The CARDINAL applicants returned to GPE on DATE , when PERSON was observed arriving at FAC carrying a black suitcase . On DATE he met PERSON ( who had been in GPE ) and PERSON ( coming from GPE ) at FAC .

On DATE a man named PERSON flew from GPE to GPE via ORG . He had with him a black suitcase containing QUANTITY of cocaine .

That morning , the applicants went to Mr ORG ’s GPE hotel . PERSON was seen carrying a black suitcase similar to PERSON . Shortly thereafter he and PERSON left the hotel by taxi for FAC , carrying the black and a grey suitcase . At the airport they boarded a flight for GPE , checking in the black suitcase in Mr ORG ’s name and the grey suitcase in PERSON ’s name . Immediately on their arrival in GPE they checked themselves on to a return flight to FAC . Mr PERSON was also on this flight , although there was no evidence of contact between Mr GPE , PERSON and Mr Terrasson .

When the aeroplane reached FAC , customs officers intercepted the luggage . They found that the CARDINAL black suitcases were indeed very similar . Mr PERSON ’s suitcase was to contain QUANTITY of cocaine . It was almost twice as heavy as the suitcase checked in by PERSON , which had a number of identifying tags attached to it .

NORP The officers put the CARDINAL suitcases back with the other luggage from the flight which passed for collection on to the carousel . CARDINAL of the officers saw PERSON take Mr PERSON ’s suitcase from the carousel and put it onto Mr ORG ’s trolley . Mr Terrasson took this suitcase through the green , “ nothing to declare ” , channel at customs . PERSON also collected the grey suitcase , which he took through the green channel . The other black suitcase , which had been checked on to the flight by PERSON , was not collected from the carousel .

Mr Terrasson and PERSON were arrested by customs officers . PERSON , who had not been on the flight or at the airport , was arrested DATE at the home of a relative in GPE . All CARDINAL men were interviewed and denied any knowledge of or participation in the offence . PERSON said that he was an emerald and diamond dealer in GPE for a short time on his way to GPE . He claimed not to know Mr ORG and stated that he did not know anything about his son ’s trip to GPE . PERSON said that he had previously travelled to GPE in connection with the purchase of some jewels , but said that he had made the most recent trip to see a girlfriend . He also denied knowing PERSON , until customs officers told him that Mr ORG ’s credit cards had been found in the grey suitcase . PERSON then conceded that he had had a brief encounter with Mr Terrasson in GPE . Mr ORG denied knowing either of the applicants or PERSON . He said that he had travelled alone to GPE , taking with him a black suitcase , to meet a married woman friend . He was unable to meet her because her husband was home , so he returned immediately to GPE . He claimed to have taken his own , not Mr PERSON , black suitcase from the carousel . Mr PERSON was arrested later in GPE . He said in interview that he had been instructed by a man called PERSON PERSON to bring the black suitcase , which he believed to contain antiques , from GPE to FAC and to leave it on the luggage carousel .

NORP In DATE “ old - style ” committal proceedings ( requiring the prosecution witnesses to give oral evidence ) were held at ORG . Under cross - examination by the defence counsel , the customs case - officer claimed that the only relevant evidence held by the prosecution which had not been disclosed to the defence was CARDINAL tapes of interviews with the applicants’ GPE relatives , CARDINAL or CARDINAL ORG statements and some material taken from the house where PERSON had been arrested .

At the trial , which started in DATE , the prosecution case was that PERSON had organised the importation , using PERSON as the courier from GPE to GPE and GPE , and that he had instructed PERSON ORG , with PERSON as “ minder ” , to collect PERSON suitcase at FAC as if in mistake for his own . There was no forensic , photographic or video evidence to substantiate the prosecution case , which relied to a large extent on the accounts given by customs officers of what they had observed .

All CARDINAL defendants pleaded not guilty and gave evidence . The applicants maintained that PERSON worked principally as a jewel trader , but that he did not keep written records because he systematically avoided paying taxes and duties in GPE . The illegality of his jewel trading had motivated their lies during their initial interviews with customs officers . The applicants’ defence centred around a dispute between PERSON and a rival jewel trader based in GPE called PERSON . They stated that PERSON had paid Mr PERSON USD MONEY in advance for diamonds , which Mr PERSON had failed to deliver to the applicants as agreed in GPE on CARDINAL occasions : QUANTITY DATE , DATE and DATE . On this last occasion , since , as before , Mr PERSON did not appear , PERSON and Mr Terrasson , who had gone together to collect the diamonds , returned immediately to FAC , where PERSON removed PERSON , not Mr Smolny ’s , suitcase from the carousel . The applicants contended that Mr PERSON was an informer for ORG and Excise . They claimed that , in order to avoid repaying his debt and for fear that the applicants would discredit him amongst other NORP traders following the non - delivery of the diamonds , he had arranged falsely to implicate them in the importation of cocaine . However , they had no evidence to connect PERSON to Mr PERSON ’s suitcase full of drugs or to substantiate the suggestion that he was a ORG and Excise informer .

Under cross - examination the customs officers involved in the case refused either to confirm or deny whether or not they had used an informer . No evidence relating to an informer or to PERSON was served on the defence or put before the judge .

In his summing up the judge summarised the defence by saying , inter alia :

“ ... PERSON had long since either directly or through the NORP authorities informed ORG and Excise that PERSON and PERSON and Mr ORG were preparing to smuggle cocaine to GPE , and in that way had induced the ORG and Excise here to mount a prolonged and labour - intensive observation of those CARDINAL men . On the DATE , PERSON sprang his trap . He got PERSON to send PERSON off with the suitcase ... with the drugs in it , believing it , of course , to be antiques and works of article He got PERSON to believe that it was worthwhile going for the third time to GPE for a delivery of the diamonds and he notified ORG of the itinerary of the various people which was to be foreseen from these arrangements , and that is how the incident you have heard about on TIME and indeed the observations of that day , came about . It follows from that account DATE if it is an accurate one – that Mr PERSON had some luck : firstly , ORG had a suitcase just like ORG . Possibly someone had observed ORG ’s suitcase and given a very exact description to ORG and they were able to get a duplicate . It would be difficult for PERSON to ask ORG and Excise about ORG ’s suitcase for that purpose , you may think , without revealing that he himself was engaged in setting them up . You may think that ORG and Excise in GPE would agree – you may want to consider whether they would agree to co - operate on that basis in framing an innocent group of foreigners of good character at the behest of an unknown NORP businessman like PERSON . ... Just consider in your mind what it would be like to try and induce ORG , even as an LANGUAGE subject , to co - operate with you in such a way . ... [ I]t is worth just looking at the costs to Mr PERSON if PERSON story is right ... to see what was in it for Mr PERSON . His costs : he provided initially some samples [ of diamonds ] worth CARDINAL or eight thousand ... US dollars . ... He lost the cost of sending [ his representative ] diagonally across the world and back [ with the sample ] with a bit of time in a hotel . ... He lost the cost of PERSON fare in the QUANTITY - class FAC return , and he lost the cost of Mr PERSON ’s GPE hotel ... . ORG [ T]he case is that he lost all those things and whatever is the cost of QUANTITY of PERCENT pure cocaine in GPE . No doubt that cost is very , very much less than it would be in GPE , but ... you may think that QUANTITY of high quality cocaine like that would cost a substantial sum , albeit nowhere near QUANTITY , in the providing country . I put those bits and pieces of information together because it is not altogether obvious when CARDINAL just runs through the story that that is what the information amounts to , but you may think it does , and it may be relevant to considering the likelihood of somebody behaving in the way Mr PERSON is said to have done . ”

On DATE the jury , by a majority of CARDINAL , convicted the applicants and Mr Terrasson of importing the cocaine . Mr PERSON was acquitted . On DATE , after an inquiry by the judge under LAW DATE , PERSON was sentenced to DATE imprisonment and a confiscation order of GBP CARDINAL,CARDINAL,CARDINAL.CARDINAL with a further CARDINAL years’ imprisonment to be served in default of payment . PERSON and Mr PERSON both received sentences of CARDINAL years’ imprisonment and PERSON was also ordered to pay a confiscation order of GBP DATE or serve a further DATE in prison .

On DATE the first applicant applied for leave to appeal against conviction . On DATE the single judge refused his application . The first applicant renewed it before ORG and the second applicant applied directly to that ORG for leave to appeal against conviction . On DATE a summary of the case was prepared by ORG .

In DATE the applicants learned from the NORP press ( ORG ) that a NORP undercover police officer , Commissioner PERSON , had written a report , called “ the ORG ” , concerning his DATE investigation into drug trafficking between GPE and LOC . In DATE the ORG solicitor obtained a copy of the report . It mentioned PERSON , describing him as CARDINAL of CARDINAL regular informers of the NORP , NORP and NORP police . He was said to have an interest in stolen jewels and a long - term involvement in the traffic from GPE to LOC of large quantities of cocaine , which he was able freely to obtain from the NORP police . In a letter dated DATE , ORG informed the applicants’ solicitors that the report was the property of the LOC cantonal police and that in DATE a meeting was held at ORG headquarters in GPE concerning the PERSON investigation but that it was not possible to provide any further information in this connection . The applicants provided a copy of the report to the prosecution , which declined to confirm or deny its authenticity or the truth of its contents , and repeated that there was no undisclosed material relevant to the issues at trial .

The applicants added a further ground of appeal coupled with an application for leave to call fresh evidence . They maintained that ORG substantiated their suggestion at trial that Mr PERSON had access both to stolen jewels and cocaine and that he had an established relationship with law enforcement agencies in LOC . In their submission , the fact that the jury had not had before it evidence relating to these matters , and the fact that the judge , ignorant of the true facts , had characterised Mr PERSON in his summing up as an unknown NORP businessman , rendered their convictions unsafe .

On or about DATE the prosecution informed the defence that , contrary to earlier statements , unserved unused material did in fact exist , which the prosecution wished to place before ORG in the absence of the applicants or their lawyers . The prosecution then applied ex parte to ORG for a ruling whether it was entitled , on grounds of public interest immunity , not to disclose this material . The applicants objected to the holding of an ex parte hearing , in writing on DATE and orally before ORG on DATE , submitting inter alia that the court was a tribunal of both fact and law and could be adversely influenced by material which was wrong or inaccurate .

ORG dismissed the objections and heard the prosecution ’s ex parte application . It decided not to rule on the application unless or until such time that , having considered the applicants’ application to introduce new evidence , it became necessary to do so .

The hearing of the applications for leave to appeal against conviction and to bring new evidence commenced on DATE . ORG indicated its view that ORG would not be admissible in evidence because , inter alia , its author could not be found to vouch for its accuracy and be cross - examined on its contents .

At the ORG request the hearing was adjourned on DATE and legal aid was granted to enable their solicitor to travel to GPE where , it was believed , PERSON was in custody awaiting trial on a charge of smuggling cocaine . However , the NORP authorities were unwilling to assist the applicants without the backing of a formal letter of request from a competent authority . The applicants therefore applied to ORG for a letter requesting the NORP authorities to give their solicitor access to the criminal proceedings there . On DATE a different constitution of ORG ruled that in principle it had jurisdiction to issue such a letter of request . On DATE , however , the originally constituted court decided that the ORG proposed request to the NORP authorities was too wide - ranging and , even if more restrictively drawn , unlikely to elicit information which would be either admissible or of assistance in the appeal . It therefore decided that it was not in the public interest to issue a letter of request , and adjourned the case until after the conclusion of Mr PERSON ’s trial in GPE in the Autumn of CARDINAL . In the event , however , PERSON was released on bail and his whereabouts were unknown at the time of the applicants’ appeal hearing in DATE .

NORP The applicants’ solicitor was able to obtain a number of documents relating to the NORP proceedings , including transcripts of interviews with Mr PERSON , arrest warrants and a list of his previous convictions . He was also able to obtain a statement from Commissioner PERSON , the NORP police officer who had prepared ORG . In his statement the Commissioner confirmed the authenticity of the report . He stated that he had been introduced to Mr PERSON by a NORP police officer and had become Mr PERSON ’s “ handler ” , passing information to the NORP authorities during the investigation into the applicants . According to the Commissioner ’s statement , his NORP “ contact ” had been a customs officer named PERSON , whom he had contacted at ORG in GPE . He believed that Mr PERSON had spoken to Mr Crago several times and had sought payment for information he had given him . The Commissioner concluded by indicating that he would be willing to appear as a witness in ORG .

On DATE the applicants added a further ground of appeal , alleging that the prosecution had failed to make full disclosure of the evidence in its possession concerning Mr PERSON , and that the lack of full disclosure rendered their convictions unsafe .

DATE before the hearing of the appeal , Commissioner ORG informed the defence lawyers that his superiors in ORG had refused him authorisation to attend . The ORG counsel suggested to ORG that this decision might have resulted from communication between ORG and Excise and the NORP authorities , but there is no evidence in support of this . Mr PERSON was called by the defence to give evidence . He denied that he had been Commissioner PERSON ’s contact and declined to answer any question about Mr PERSON .

On DATE , after hearing the applicants’ application to admit new evidence and holding an ex parte hearing in the absence of the defence lawyers , ORG ruled that justice did not require disclosure by the ORG of the public interest immunity evidence . The applicants and their lawyers were not permitted to be present when the court delivered its judgment on disclosure .

On DATE the court dismissed the application for leave to appeal . It observed :

“ Little , if any , of the material [ put before ORG by the ORG counsel ] would have been admissible at the trial . That is not only because it is largely hearsay and unspecific as to events and dates , but simply because much of it is wholly irrelevant to the central issue in this case , namely whether ORG and Excise officers conspired with PERSON to ‘ frame’ the NORP . However , in considering all the information put before us , we have not been able to avoid taking a view of its effect if , and to the extent that it were admissible and credible , on the outcome of this appeal , that is , whether ... it ‘ [ might ] afford any ground for allowing the appeal’ . We have tested that by assuming for the purpose : ( CARDINAL ) that PERSON ... was charged in GPE , with others , on a charge of smuggling a large quantity of cocaine from LOC to GPE in DATE ; ( CARDINAL ) that his role in the importation of the drug to GPE is said to have been as a participating informer to the NORP police ; ( CARDINAL ) that since DATE he had been concerned in the smuggling of large quantities of cocaine from GPE to LOC ; ( CARDINAL ) that for DATE before the DATE importation of cocaine he had been an informer to various law enforcement agencies in LOC , though there is nothing to suggest that he had any contact with ORG and Excise before that importation ; ( CARDINAL ) that at the time of the DATE importation he had access to large quantities of cocaine in GPE at little or no cost ; ( CARDINAL ) that he had provided information to a NORP law enforcement agency which led to ORG and Excise observations of the NORP before the DATE importation ; and ( CARDINAL ) that , as alleged by PERSON at the trial , PERSON may have had a grudge against him arising out of some previous dealing between them . ... [ Prosecuting counsel ] suggested that the only way PERSON could have been sure of achieving such an end would have been to persuade the officers to ‘ plant’ the drug on , or falsely attribute it to , PERSON or ORG . Such a conspiracy between PERSON and the officers would have been hard for them to organise to an assured outcome . ... [ H]ow could they have organised it so that ORG had a suitcase almost identical to that of PERSON ? And what possible motive or reason could the officers have had to lend themselves to such a disgraceful enterprise whether PERSON was a known informer or not ? In the ORG ’s view , there is force and hard logic in those submissions . There are also a number of other questions indicating the impossibility of the Atlans’ defence . Why , if they thought they were to collect diamonds from ORG , not drugs , did PERSON and ORG immediately check their luggage onto the return flight without apparently enquiring by telephone why he had not turned up or whether he had been delayed ? Why did PERSON and the CARDINAL of them make no contact in GPE and ignore each other on the plane to FAC ? Why did PERSON and ORG separate as ORG boarded a taxi at FAC with the case containing the cocaine ? Why did the NORP tell so many lies on arrest and in interview about their activities together before the flight to GPE and about the reason for it ? Why did PERSON lyingly state that he had travelled on his own on the return flight to GPE and that he did not know ORG ? Why did they later give wholly different accounts in evidence at their trial ? Why did PERSON make indirect telephone contact with someone on PERSON ’s telephone number in GPE on DATE of the importation ? In the ORG ’s view , none of its assumptions , some of which go well beyond the new information relied upon by the NORP , detracts in any way from the overwhelming strength of the prosecution case identified in those various questions or provides any material support for the possibility of a conspiracy between the ORG and Excise officers and PERSON or anyone else to ‘ frame’ the Atlans . The jury , by its verdict , clearly rejected PERSON and ORG ’s suggestion of it . Although PERSON did not then suggest such a conspiracy , it was his only possible line of defence , though , for the reasons we have given , a wholly unrealistic one . [ Prosecuting counsel ’s ] submission , which echoes considerations voiced by the judge to the jury in the summing up , provides a logical and complete answer to the complaint based on PERSON ’s alleged role as an informer and drug smuggler . If the jury had had before it information matching our assumptions , it might have led them to conclude that PERSON may have provided some information , direct or indirect , to ORG and Excise , but it could not have left them with any doubt as to the Atlans’ knowing and deliberate involvement in the importation of cocaine into GPE . The evidence against them , which had been thoroughly and robustly tested at the trial , was overwhelming : the ORG and Excise officers’ observation of their various and highly expensive international air flights , for which there was no plausible explanation or documentation suggesting any legitimate business ; the ORG observation of their movements and meetings in GPE and of the CARDINAL strange return trips to and from GPE ; their various handling of what was to become ORG ’s suitcase used for the switch ; their lies on arrest and in interview . All that activity pointed only to their involvement in the high value and high risk activity of drug smuggling , not some black market dealing in gems under NORP law . Whatever PERSON ’s possible role as an informer , the Atlans’ guilty participation in cocaine smuggling is clear . ... ”

At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .

In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ( [ DATE ] vol . CARDINAL ORG p. CARDINAL : “ the Guidelines ” ) . The Guidelines attempted to codify the rules of disclosure and to define the prosecution ’s power to withhold “ unused material ” . Under paragraph CARDINAL , “ unused material ” was defined as :

“ ( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; ( ii ) the statements of any witnesses who are to be called to give evidence at the committal and ( if not in the bundle ) any documents referred to therein ; ( iii ) the unedited version(s ) of any edited statements or composite statement included in the committal bundles . ”

Under paragraph CARDINAL , any item falling within this definition was to be made available to the defence if “ it

According to the LAW , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”

According to paragraph CARDINAL , “ in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence ” . The decision as to whether or not the balance in a particular case required disclosure of sensitive material was CARDINAL for the prosecution , although any doubt should be resolved in favour of disclosure . If either before or during the trial it became apparent that a duty to disclose had arisen , but that disclosure would not be in the public interest because of the sensitivity of the material , the prosecution would have to be abandoned .

Subsequent to the applicants’ trial in DATE , but before the appeal proceedings in DATE , the Guidelines were superseded by the common law . In NORP v. Ward ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) ORG dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case , because :

“ ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . ”

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence then had the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

ORG observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .


No violation of Art. 8;Not necessary to examine Art. 10 and 11

The applicant was born in DATE and lives in PERSON .

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

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment for aggravated murder . He served the sentence in FAC in GPE . The applicant was released on licence on an unspecified date in DATE .

The applicant is the President of the organisation for ORG mutual assistance and support “ Freedom ” ( “ PERSON ” ) . On DATE the applicant signed a letter , on behalf of this organisation and certain other prisoners , complaining about the conditions of detention at FAC and about various allegedly unlawful acts of the prison administration . The complaint was addressed to QUANTITY persons , QUANTITY of whom were ORG officials and the CARDINAL others representatives of the private media . According to the applicant , the complaint was not sent through the prison administration , but rather through an inmate who had been released from the prison , in order to avoid censorship .

On DATE the ORG Director punished the applicant by prohibiting him from receiving a parcel during a personal visit , having found that the sending of the complaint of DATE through channels other than the prison administration had breached LAW . It was also established that ORG ( fifth addendum ) prohibited a prisoner from using a personal computer , as had been the case with this letter . The Director held that the applicant could only send the complaint to the ORG authorities , not to other organisations or persons ( LAW ) . The Director further stated that LAW prohibited complaints “ on behalf of other prisoners ” .

Upon the applicant ’s appeal , on DATE the ORG established that the provisions of FAC had not properly protected prisoners’ rights of association . The Ombudsman did not express her opinion as to the lawfulness of the penalty .

NORP The applicant applied to the administrative courts , claiming that the penalty had been unlawful . On DATE ORG disallowed the claim for want of jurisdiction .

On DATE ORG upheld the decision on appeal . Upon the applicant ’s further appeal , on DATE ORG quashed the lower court decisions . It held inter alia that the prison administration was part of the Executive , and that the administrative courts were consequently competent to examine the applicant ’s action concerning its allegedly unlawful acts .

As the applicant subsequently submitted the claim in accordance with the requirements of LAW , his action was examined by ORG on DATE , in the presence of the applicant , transported to the hearing directly from the prison .

The court rejected the action as unsubstantiated , finding that the penalty of DATE had been lawful . It held inter alia :

“ Pursuant to LAW , convicted persons are guaranteed the right to submit applications , proposals and complaints to the ORG authorities , public organisations and officials . When needed , the prison administration can attach their observations [ thereto ] . However , convicted persons are prevented from applying to these institutions through channels other than the prison administration ( LAW ) . The applicant admitted that the application [ of DATE ] was sent to CARDINAL addressees illegally , through a person who had completed his sentence and had been released from the prison . The prison administration was therefore deprived of the right to submit their comments as to the issues set out in the application . ”

On DATE ORG rejected the applicant ’s appeal against the judgment , holding inter alia :

“ The applicant ’s claims that the [ relevant ] provisions of the Prison Code contradict the LAW are unsubstantiated . The applicant must acknowledge that he has been convicted and sentenced to imprisonment , and that his legal situation is different from that of persons who have not breached the law ... .

As appears from the case file , the applicant was punished [ on DATE ] not for corresponding with representatives of the media , but for a breach of the requirement under LAW to conduct [ such correspondence ] through the prison administration . The same can be said regarding the applicant ’s claims that , by way of the impugned penalty , he was punished for making criticisms , holding opinions or imparting information . ”

Article CARDINAL § CARDINAL of FAC , as then in force , stipulated that convicted prisoners were not restricted in the amount of their outgoing letters . The third paragraph of Article CARDINAL required the prison administration to send a prisoner ’s letter to the addressee within DATE of receipt or its presentation by the prisoner .

Article CARDINAL § CARDINAL of the Prison Code applicable at the material time provided that convicted prisoners could send “ proposals , applications and complaints to the ORG authorities , public organisations and officials . ” The provision also entitled the prison administration to attach its own explanations in relation to such matters .

Until DATE , LAW provided that convicted ORG correspondence with the prosecutor could not be subject to censorship ( cenzūra ) . Following a legislative amendment effective since DATE , convicted ORG correspondence with the ORG authorities and ORG could not be censored .

According to the then LAW , convicted prisoners were not allowed to send “ collective complaints and applications ” or complain “ on behalf of other convicts ” .

Under LAW as then in force , convicted prisoners were not allowed to send proposals , applications and complaints addressed to the ORG authorities through channels other than the prison administration .

Rule CARDINAL.CARDINAL.CARDINAL of ORG , applicable at the material time , read as follows :

“ Proposals , applications and complaints [ by a convicted person ] raising questions within the competence of the prison administration shall not be sent to the addressee , but shall be examined on the spot . Having examined [ such a ] proposal , application , or complaint , a prison official shall write a report and ... include it in the convicted person ’s prison file . Should there be disagreement , the proposal , application or complaint shall be sent to the addressee together with the report . If there is a repeated proposal , application or complaint with the same content , the prison administration will note its previous reply in the report ... If the authority , organisation or official addressed by the convicted person is not competent to decide the questions raised , the prison administration shall advise [ the prisoner ] to re - address the proposal , application or complaint . Should [ the prisoner ] refuse to do so , the proposal , application or complaint shall be sent to the addressee . ”

The Prison Interim Rules ( fifth addendum ) applicable at the material time prohibited a detainee from using a computer .

The new Prison Code applicable since DATE does not allow any screening of convicted ORG correspondence with the ORG authorities and ORG rights . Under LAW , all other correspondence may be censored ( cenzūruojama ) on the basis of a decision by a competent authority ( a prosecutor , prison director or court ) taken on a case - by - case basis .

In its ruling of DATE , ORG held that the domestic statutes were in breach of the LAW insofar as they allowed unjustified censorship of ORG correspondence . ORG also held that specific grounds should have been indicated for any particular instance of censorship .

Certain other domestic provisions concerning the censorship of convicted ORG correspondence have been summarised in the judgments of PERSON v. GPE ( no . PERSON , CARDINAL.CARDINAL.CARDINAL § § CARDINAL - CARDINAL , ECHR CARDINAL ) and PERSON ( no . CARDINAL ) v. GPE ( no . CARDINAL , CARDINAL , § § DATE ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives near GPE , GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant is a gypsy . She lived with her young son and other members of her extended family in caravans on what has become known as Plot CARDINAL Woodside Caravan Park at ORG , near PERSON in GPE ( ‘ the Site’ ) . ORG ( ‘ the Council’ ) was responsible for planning control in relation to the Site and was also the responsible housing authority .

The applicant moved with other gypsies onto the Site with their caravans in DATE , in breach of planning control . Over time , the Site became divided into CARDINAL plots . ORG first learned in DATE that gypsies were occupying the Site . In DATE , the ORG served enforcement and stop notices on the occupiers of the ORG under the provisions of ORG DATE . The occupiers appealed . It is not clear from the materials submitted whether the applicant was amongst those who appealed .

Following a local public inquiry held in DATE , a planning inspector dismissed the appeals by decision letter dated DATE . He gave the occupiers DATE within which to comply with the enforcement and stop notices , so as to enable them to apply for planning permission in respect of smaller area . It appears that they took no steps to comply with either set of notices . In DATE or DATE the ORG resolved to take enforcement action by way of injunction or prosecution ; at about the same time , the occupiers , styling themselves “ the owners of FAC ” made a further planning application , essentially to continue its use , albeit with more landscaping . Again , it is not clear from the materials submitted whether the applicant was involved in the making of this application .

In DATE , shortly after the expiry of DATE period of grace given by the inspector , the ORG refused the application for planning permission . Following inquiry , the inspector dismissed the ORG appeal in DATE .

DATE , before the ORG could put into motion steps to evict the occupiers , the latter , including the applicant , made CARDINAL planning applications in respect of individual plots on the site . In DATE , the ORG refused the majority of the applications , including those of the applicant . The applicant and CARDINAL other occupiers each appealed the refusal in their individual case .

In the meantime , in DATE , the ORG issued proceedings for injunctions against named and un - named occupiers of the Site . The latter responded in DATE by seeking and obtaining permission to apply for judicial review , it appears against the decision to issue these proceedings .

In DATE and DATE an inspector held an inquiry into the CARDINAL individual appeals . In DATE , the inspector dismissed each of them . The ORG then immediately sought and obtained ( after DATE hearing , at which evidence was given ) an injunction against her and all the other occupiers of the Site to remove themselves , their caravans , all hard standings and associated materials from the Site by DATE ( ‘ the ORG ) .

The applicant responded by making a further planning application , this time in relation to CARDINAL plots on the land . The ORG refused to determine this application because of its close similarity to the previous application . The applicant sought without success on paper to obtain permission to claim judicial review in respect of that decision . At about the same time she and other occupiers applied both to ORG to vary the terms of the injunction as to the date when they should leave the Site and also to the ORG for accommodation as homeless persons under the provisions of Part VII of LAW ( ‘ the DATE Act’ ) .

In DATE , ORG refused the ORG application for variation of the injunction and refused them permission to appeal . Very shortly thereafter the ORG exercised its power under s.CARDINAL Town and Country Planning Act DATE to clear the majority of the occupiers from the Site , but not the applicant , who with her family continued to occupy so - called LAW ( with CARDINAL caravans ) .

In DATE , ORG refused the occupiers permission to appeal the decision of ORG . The applicant did not seek to renew orally her judicial review application in respect of the ORG ’s refusal to entertain her application for planning permission , on the ORG agreeing not to enforce the injunction without giving her and her family DATE notice of its intention to do so and to consider and determine their homeless applications ( one made on DATE and a revised one made on DATE , the former ultimately being subsumed into the latter ) .

In that homelessness application , the applicant explained that she had an aversion to conventional “ bricks and mortar ” and that she :

“ ... [ did ] not wish to be given bricks and mortar . She has always lived in a caravan , has only spent TIME in a building in her life . PERSON wishes to live in a caravan and have the support of her extended family around her . ”

On DATE , the ORG , acting through ORG ( to which it had delegated its housing function ) ( ‘ the Association’ ) , accepted its duty under section CARDINAL of the DATE Act to provide the applicant and her family with suitable accommodation . The ORG concluded that they could only offer them “ bricks and mortar ” accommodation in a “ bed and breakfast establishment ” until it could make a final offer of accommodation acceptable to them . The letter read to the applicant read in relevant part as follows :

“ The ORG ... have a duty to secure suitable accommodation is available for your occupation and , in doing so , shall have regard to all the relevant circumstances relating to you and those who normally reside with you or might reasonably be expected to reside with you .

The ORG is aware that there are CARDINAL / CARDINAL caravans on Plot CARDINAL , GPE , ORG , the occupants of which you have included in your homelessness application . The ORG is also aware that you consider the occupants of these other vehicles as part of your immediate household and that you have requested that they be accommodated with you . In your application you have also indicated that you do not wish to live in accommodation made of bricks and mortar and that you would consider the offer of a plot / piece of land .

Unfortunately , as you aware from previous meetings , the ORG is unable to offer land , and can only secure accommodation from either its own housing stock or , on some occasions , property owned by ORG also operating within LOC . Further , it is also highly unlikely the ORG will be able to secure a single property large enough to accommodate all the occupants of Plot CARDINAL , FAC . However , given that each family occupying DATE resided in their own separate unit of accommodation , the ORG does not consider it unreasonable to offer an individual property for each family on Plot CARDINAL and will endeavour to ensure the properties offered are in as close proximity to each other as is reasonably possible . ”

The applicant sought to clarify what accommodation the ORG was intending to offer her ; they made it clear that they were intending , in the short term , to offer her bed and breakfast accommodation . Through her solicitor , the applicant sought an internal review of this decision pursuant to section CARDINAL of LAW . On DATE , the decision was upheld . The ORG wrote in the following terms :

“ In relation to the question about reasonableness [ sic ] of an offer of ORG or other temporary accommodation I have reached the following conclusions :

[ LAW and LAW ( DATE ) ] ... provide clarity of what constitutes suitable accommodation . ORG is deemed to be suitable accommodation particularly as ... the ORG have already confirmed that they will take all reasonable steps to minimise its use . Wherever reasonably practicable the offer of any temporary accommodation would be within Mid Beds and that such accommodation as would be provided would be fit for occupation and would not result in statutory overcrowding [ a reference to section CARDINAL of LAW ] .

... I note your concerns regarding a stay in bricks and mortar accommodation and would certainly not underestimate the differences [ sic ] which you would have to face having always lived in a caravan . I understand that you are concerned about living without the support of your family but again ... [ the ORG ] have advised that all practical steps would be taken to accommodate you as a close family unit .

Therefore having fully considered the details of your case and your cultural aversion to bricks and mortar as detailed ... I find that , while sympathetic to them , I must also take into consideration the general makeup and stock of the housing within the area and also the availability of suitable accommodation and this leaves us with no alternative but to offer bricks and mortar accommodation . ”

The applicant then applied to ORG for a statutory review pursuant to section CARDINAL of LAW . She advanced multiple grounds , but CARDINAL of them , the question of whether the accommodation offered was suitable , was considered at length , the others being found to be entirely groundless . ORG found : ( CARDINAL ) that the ORG had accepted and continued to accept that it owed a statutory duty to the applicant and her family to secure that suitable accommodation was made available to them ; and ( CARDINAL ) the applicant had a “ cultural ” aversion to living in “ bricks and mortar ” accommodation . However , the court also accepted that the ORG did not have any land available for the applicant or members of her family to pitch their caravans , such that it was impossible for it to offer what she wanted . ORG judge considered the position by reference to domestic decisions which had , in turn , considered the jurisprudence of this Court . The judge considered that he was bound by the decision in R ( Price ) v ORG [ DATE ] EWHC CARDINAL ( Admin ) ( in which the case of PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALI had itself been the subject of consideration ) . ORG in Price found that , while it was necessary that special consideration be given to the position of gypsies as a minority , it could not be argued that an offer or bricks and mortar accommodation could never constitute a suitable alternative accommodation for a Gypsy with a cultural aversion to bricks and mortar .

ORG found that “ to impose on ORG a duty to produce a pitch or berth for CARDINAL or CARDINAL caravans is not supported by statute or by case law , whether in this country or in LOC . ” It also found that , while the ORG had not expressly considered Articles CARDINAL or DATE , it had proceeded in a way compatible with their requirements . The court therefore found that , in the circumstances , the ORG ’s offer was an adequate discharge of its duty under section CARDINAL .

The applicant appealed to ORG , which dismissed her application for permission to appeal on DATE . ORG found that , while an empty pitch is not itself “ accommodation ” for purposes of CARDINAL , a council could , by making it available as a site to pitch a caravan , and with the agreement of the individual , be said to have discharged its duty under the section . ORG therefore considered at some length the question of whether bricks and mortar accommodation could be said to be “ suitable ” for a Gypsy with a cultural aversion to bricks and mortar . It considered the same domestic cases as had been considered by the lower court , as well as PERSON , and found there to be CARDINAL main criteria for assessing the suitability of accommodation offered :

“ CARDINAL ) suitability to a [ ORG [ DATE ] CARDINAL KB CARDINAL ] minimum level of suitability in the nature , location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family including the duration of their likely occupation of it ; CARDINAL ) the absolute nature of the duty which , though , coupled with an elastic concept of suitability is not elastic as to allow an offer below the ORG minimum standard ( or ... outside the margin of appreciation ) ; and CARDINAL ) special consideration , in the regulatory and decision - making in individual cases , for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view , so far as is practicable and when considered with all other circumstances , to facilitating their traditional way of life . ”

ORG found that , if the ORG had carried out a genuine consideration of a ORG needs ,

“ where land is not available , or can not readily be made available , on which a Gypsy applicant can station his or her caravan , it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind , providing that it satisfies the ORG minimum line of suitability . ”

ORG found that the ORG and first instance judge had correctly identified and applied the relevant principles in the applicant ’s case . It also considered that the first instance judge had properly considered the Article CARDINAL question in his own right .

ORG noted that the ORG was required as “ as a matter of relative urgency to find accommodation for an extended family occupying CARDINAL or CARDINAL caravans , who were insisting , because of their aversion to conventional housing , on being provided with an alternative site for all of their caravans on which they could continue to live together . ” As with the first instance court , ORG found that there was no such site available , nor was the ORG immediately able to provide long - term conventional bricks and mortar accommodation for the extended family .

It therefore concluded that , “ depending on the quality of bed and breakfast accommodation offered and , on the reasonable assumption that the ORG will see to it that their stay will only be for a short time , ” the ORG by offering bed and breakfast accommodation had discharged its duty under section CARDINAL and had acted compatibly with ORG CARDINAL and/or CARDINAL . It added the caveat that bed and breakfast accommodation could become unsuitable either under domestic law or by reference to LAW if too long a period elapsed before the provision either of conventional housing or , if it could be found , a caravan site .

ORG refused the applicant permission to appeal on DATE on the basis that her petition did not raise an arguable point of law of general public importance which ought to be considered by the ORG at that time , given that it had already been the subject of judicial decision .

On DATE , the ORG reassessed the applicant and made a further offer of temporary accommodation . This was refused by letter dated DATE . No details of the accommodation offered at that point have been provided by the applicant . It is in particular not clear whether the ORG offered bed and breakfast or permanent settled accommodation and/or whether it restated its view that there were no suitable caravan sites available .

On DATE ( and again on DATE ) , the ORG gave notice of its intention to enforce the injunction ; ORG dismissed an application for judicial review of the ORG ’s decision on DATE .

The applicant and her family vacated the Site on or before DATE . It appears that they are now on unauthorised sites , and the applicant ’s family is split because they have been unable to find a site where they can remain together . She contends that she ( and her family ) are now vulnerable to proceedings for possession from local authorities and private landowners , and also to the imposition of removal directions and/or possible criminal proceedings under sections DATE , CARDINALA - E , CARDINAL and CARDINAL of ORG .

The applicant has submitted a press release from ORG Deputy Prime Minister dated DATE , from which it appears that the ORG is consulting on a revision to the directions given to local authorities with a specific view to increasing the number of authorised caravan sites available for use by travellers and gypsies .

Local authority duties to the homeless are provided in Part VII of LAW . Section CARDINAL provides , in material part :

“ ( CARDINAL ) This section applies where the local housing authority are satisfied that an applicant is homeless , eligible for assistance and has a priority need , and are not satisfied that he became homeless intentionally .

( CARDINAL ) Unless the authority refer the application to another local housing authority ( see section CARDINAL ) , they shall secure that accommodation is available for occupation by the applicant . ”

Section CARDINAL provides , again in material part ,

“ ( CARDINAL ) A local housing authority may discharge their housing functions under this Part only in the following ways –

( a ) by securing that suitable accommodation provided by them is available ,

There is no definition of the word “ suitable ” in this section .

By section CARDINAL ( CARDINAL ) of LAW

“ A person is also homeless if he has accommodation but –

( b ) it consists of a moveable structure , vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it . ”

The meaning of the word “ suitable ” within the context of sections CARDINAL and CARDINAL of the CARDINAL Act has been considered in several domestic cases . The most relevant is that of R ( Price ) v ORG [ DATE ] EWHC CARDINAL ( Admin ) , in which the main issue was whether the Gypsy in question had a cultural aversion to bricks and mortar . However , ORG had to consider as a starting point whether such an aversion of itself could prevent an offer of such accommodation from amounting to an offer of suitable accommodation . ORG , expressly considering itself to be following PERSON , accepted that it was incumbent on local authorities to give effect to the positive obligation imposed on contracting GPE under LAW to facilitate the Gypsy way of life , but found that , had the respondent council concluded that :

“ the claimant ’s cultural commitment to traditional life was so powerful as to present great difficulties in her living in conventional housing , it was not bound by duty to find her a pitch , but it would have been a significant factor in considering how far it should go to facilitate her traditional way of life . ”


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award

Christos Rozakis;David Thór Björgvinsson;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant is a public limited company whose registered office is in GPE . It publishes the ORG , a DATE newspaper with a large circulation . The present case concerns the publication by the newspaper of CARDINAL articles about X , a well - known television actor . DATE and DATE X had played the part of ORG Y , the hero of a television series broadcast on a private television channel in DATE , until DATE . By DATE , CARDINAL episodes had been broadcast , DATE of which had starred X in the role of Police Superintendent Y. The average audience rating was PERCENT ( CARDINAL viewers per episode ) .

On DATE the applicant company revealed that X had been convicted of unlawful possession of drugs . After receiving a warning from X , it undertook , on pain of an agreed penalty , to refrain from publishing information according to which QUANTITY of cocaine had been found at X ’s home that he had had sent to him by post from GPE and for which he had been given a prison sentence , suspended for DATE , and fined MONEY ( ORG ) .

At TIME on DATE X was arrested at the GPE beer festival ( NORP ) for possession of cocaine . In a sworn statement ( eidesstattliche ORG ) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and , if so , on what grounds . The police had confirmed that X had been arrested in the PERSON tent in possession of cocaine , without giving any further details .

According to that statement , the journalist had then contacted the public prosecutor , PERSON , from the public prosecutor ’s office of ORG I , in charge of relations with the press , and had asked him for information . PERSON had confirmed that PERSON had been arrested in the PERSON tent in possession of cocaine . According to PERSON , plain - clothes police officers had arrested PERSON because they had seen him making a suspicious movement with his hand when coming out of the toilets . The officers had searched him , and , having found him to be in possession of an envelope containing QUANTITY grams of cocaine , had arrested him . According to PERSON , the arrest had taken place at TIME on DATE and a criminal complaint was currently being investigated .

In its CARDINAL DATE edition , the applicant company ’s DATE newspaper , the ORG , published the following headline in large type on its front page :

“ Cocaine ! PERSON caught at the GPE beer festival . ”

The article , which was printed in small type , read as follows :

“ He came out of the gents tapping his nose suspiciously and was arrested ! At the beer festival the police caught X ( ... DATE old , PERSON on television ) , in possession of a small envelope of cocaine . See page CARDINAL for the details . ”

The following headline appeared on page CARDINAL of the daily :

“ TV star X caught in possession of cocaine . A bretzel ( PERSON ) , a beer mug [ containing a litre of beer – Maß ] and a line of coke ( PERSON ) . ”

The article , printed in small type , read as follows :

“ DATE TIME , TIME At the beer festival there was drinking , partying , swaying arm in arm . And sniffing .... In the ORG tent the TV star X ( ... DATE old , whose real name is ... ) came out of the gents tapping his nose and attracting the attention of police officers . They searched the star actor from the TV series Y ( of which , by DATE , there had been CARDINAL episodes in DATE ) . COCAINE ! X had a packet on him containing QUANTITY of coke , and was arrested . Public prosecutor PERSON from GPE told the ORG : “ He was making suspicious movements with his hand , tapping his nose with his fingers . This of course attracted the attention of our officers . An investigation is under way . Only a small quantity of cocaine is involved though . PERSON : “ Right in the middle of the festival grounds ( NORP ) – it might have been snuff tobacco , but our men have a flair for this sort of thing ... ” . X had already had a run - in with the law for possession of drugs . In DATE the Superintendent from the TV series had been given a DATE suspended prison sentence and DATE probation and fined ORG CARDINAL,CARDINAL . He was accused of illegally importing drugs . On a trip to GPE X had arranged for QUANTITY grams of cocaine to be sent to his address in GPE . His probation period ended DATE . The quantity of the drug found in the tent ... is negligible . What can the actor expect ? According to a legal expert questioned by ORG : “ Even if the probation period is over the previous conviction is recent . X may get an unsuspended prison sentence DATE up to six months ” . Why prison ? “ X has apparently not been sufficiently daunted by the suspended prison sentence ” . The actor has probably had to submit to a forensic head hair examination . Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken . DATE PERSON refused to comment . P.S : “ In every toilet cubicle in the tent ... there are signs saying : “ The use of drugs is liable to prosecution ! ”

The article was accompanied by CARDINAL photos of X , CARDINAL on the first page and the other CARDINAL on page CARDINAL .

On DATE , during the morning , press agencies and other newspapers and magazines reported on ORG arrest , referring in part to the article published in the ORG . DATE the prosecutor PERSON confirmed the facts reported in the ORG to other written media and television channels , CARDINAL of which ( “ RTL ” and “ proCARDINAL ” ) broadcast the same reports that TIME . During CARDINAL of the broadcasts the prosecutor PERSON made the following statement :

“ The police officers saw X making a suspicious movement with his hand while coming out of the men ’s toilets and concluded that he had taken something . They searched him and found an envelope containing QUANTITY of cocaine . He had already been convicted of importing drugs and given a suspended prison sentence . He is not a first offender ( Ersttäter ) . He should have known that he should not touch drugs . He can now expect a further prison sentence , even if the quantity found on him is insignificant . ”

In its DATE edition the ORG printed the following headline on its inside pages : “ TV series FAC confesses in court to having taken cocaine . He is fined MONEY ! ”

The article read as follows :

“ GPE – On TV he plays a superintendent who puts criminals behind bars . DATE , it was the turn of the actor X ( ... DATE old , ... ) to be hauled up in front of the court and confess ! X , who had to explain himself to ORG [ ORG ] on charges of “ unlawful possession of drugs ” , has confessed to taking drugs ! X ’s counsel ... stated : “ We fully acknowledge the offence with which we have been charged in the indictment ” . X confessed to the court : “ I have occasionally smoked cannabis and taken cocaine from time to time . This has not made me happy . It had not turned into a habit but is just something that I have done from time to time ” . Question from the court ... : “ Are you currently taking drugs ? ” Reply from X : “ No , I smoke cigarettes . ” The sentence : a fine of ORG CARDINAL . The court : “ The accused ’s full confession has counted in his favour . ” On TV X continues investigating on the side of law and order . In GPE he is in front of the cameras for the television series ... which should be starting on the second channel in the DATE . ”

The article was accompanied by a photo of X.

NORP Immediately after the articles appeared , X. instituted proceedings against the applicant company in ORG . The applicant company attached to its initial reply the statement by its journalist ( see paragraphs CARDINAL above ) and numerous press articles about X , including a number of interviews given by him , to ORG magazine among others , together with photos of him .

On DATE ORG imposed an injunction on publication of the article , following a request lodged by X on DATE . In a judgment of CARDINAL DATE it confirmed the injunction . That judgment was upheld by ORG on DATE .

On DATE ORG also imposed an injunction on publication of the photos illustrating the article . It confirmed that decision in a judgment of DATE . The applicant company did not challenge that judgment , which became final .

On DATE the NORP ORG prohibited any further publication of almost the entire first article , on pain of an agreed penalty , under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ( by analogy ) of LAW ( see paragraph CARDINAL below ) , read in the light of the right to protection of personality rights ( Allgemeines Persönlichkeitsrecht ) . It ordered the applicant company to pay ORG CARDINAL as a penalty under the agreement and to reimburse the procedural expenses ( EUR CARDINAL , plus statutory interest accrued from DATE ) .

According to ORG , the article in question , which mentioned ORG name and was accompanied by photos of him , amounted to a serious interference with his right to the protection of his personality rights ; the disclosure of his criminal conduct had , so to speak , resulted in his being pilloried and discredited in the eyes of the public . The court found that , despite those negative effects , reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report . Any interference with a criminal ’s private sphere was limited , however , by the proportionality principle , which involved a balancing exercise between the competing interests . The court held that in the present case the right to protection of X ’s personality rights prevailed over the public ’s interest in being informed , even if the truth of the facts related by the daily had not been disputed . Neither the nature of the crime committed , nor the person of X , nor any other circumstances justified publication of the article at issue .

The court observed that whilst a drugs - related offence was not a petty crime , particularly as in the present case it had been cocaine , which was a hard drug , X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking . The type of offence involved was of medium , or even minor , seriousness , was a very common one and there was no particular public interest in knowing about it . The court added that , unlike serious crimes ( such as spectacular robberies , or murders ) , there were no particular circumstances distinguishing the offence in question from ordinary crimes , even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles . Furthermore , the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one . The report had focussed more on X ’s person than on the offence , which would probably never have been reported in the press if it had been committed by a person unknown to the public . Similarly , the court pointed out , whilst ORG ’s previous conviction for a similar offence was such as to increase the public ’s interest , it was his only previous conviction and , moreover , dated back DATE .

NORP The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y , a character in a relatively popular television series , but not in the actual person of the actor playing the part . There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information . The interest in X did not , in any event , go beyond the interest habitually manifested by the public in leading actors in NORP television series .

The court observed that the applicant company had published many articles about X over a period of DATE and particularly over DATE . The vast majority of these publications had , however , merely mentioned X ’s name – often without a photo – among the names of celebrities invited to various events . Whilst it was undisputed that X had taken part in over CARDINAL national and international cinematographic and televised productions , that did not convey much of an idea of his public importance . Indeed , actors could have starred in CARDINAL of television series and still remain little known to the public . There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye .

X had , to an extent , sought to attract the public ’s attention by giving interviews to certain magazines CARDINAL . He therefore had to be more tolerant towards reports published about him than other wellknown figures who avoided the limelight . According to the court , X had not , however , courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights .

ORG conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role . However , that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character . The actor merely donned the persona of a superintendent , just as he could don that of any other character , without thereby adopting the conduct of the character in question in his daily life . The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported . In the court ’s view , viewers could distinguish between the actor and his role , even where the actor was well known essentially for playing CARDINAL particular character .

ORG found , further , that X had not sought to portray himself as an emblem of moral virtue ; neither had he adopted a stand on matters relating to drug abuse . The interviews reported by the applicant company contained no comment by X on the subject . In issue no . CARDINAL/CARDINAL of the magazine PERSON , X had stated , in passing , that he did not have any alcohol in the house and that he had become a big tea connaisseur . In the court ’s view , the fact that X had briefly remarked on his previous conviction in CARDINAL interviews with magazines in DATE did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field . That subject had been only marginally covered in the interview , which had mainly concerned the actor ’s professional prospects and his difficulties in his relationships .

Observing that when balancing the competing interests , the decisive criteria were how well known X was and the seriousness of the offence with which he was charged , ORG found that the case concerned an actor who was not exceptionally well known and was accused of an offence which , while not insignificant , was not particularly spectacular and could be regarded as fairly common in the entertainment world . The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne , whereas the information published amounted to a serious ( gravierend ) interference with PERSON ’s right to the protection of his personality rights .

ORG found , lastly , that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests . Admittedly , the press officer from the public prosecutor ’s office at ORG I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them ; nor was there any doubt that the public prosecutor ’s office could be regarded as a “ privileged source ” ( privilegierte ORG ) of information that did not , as a general rule , require verification as to the truth of its content . Moreover , CARDINAL press agencies had disclosed similar details . However , even assuming that it had received all the information before publishing the article in question , the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X ’s right to protection of his personality rights . In the court ’s opinion , the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press .

The court found that it could be presumed that institutions providing a public service , and in particular the public prosecutor ’s office and the police , made every effort , in accordance with the principle of neutrality , not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned . However , such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media .

In the instant case the applicant company was actually better placed than a member of the GPE public prosecutor ’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest . On that point the court considered that account also had to be taken of the context in which the information was published : the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person ’s name was justified or not . Accordingly , publishers could not generally consider that the disclosure of a person ’s identity by a privileged source would make any kind of report on the person concerned legal , without having first balanced the interests at stake .

ORG pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities . Accordingly , in the case of X , the question arose as to whether it was appropriate for the public prosecutor ’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started . The court concluded that the applicant company could not argue that it had relied on the disclosure of ORG name by the public prosecutor ’s office .

On DATE ORG dismissed an appeal by the applicant company , but reduced the amount of the agreed penalty to ORG CARDINAL . It upheld the conclusions of ORG , pointing out that the disclosure of a suspect ’s name when reporting on an offence constituted , as a general rule , a serious infringement of the right to the protection of personality rights , even if it was a drug offence of medium or minor seriousness . In X ’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and , in particular , of obtaining a role in an advertisement or in television series aimed at a young audience .

ORG reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights , as established by ORG ( see paragraph CARDINAL below ) . It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known . In the court ’s opinion , the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public . As PERSON had not taken cocaine in the tent in front of everyone , his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well - known television star .

ORG acknowledged that the public had a particular interest in being informed and entertained because X was a well - known figure and had played the part of a police superintendent over a long period of time ( längerer PERSON ) . However , even if X played that role , this did not mean that he had himself necessarily become an idol or role model as a law - enforcement officer , which could have increased the public ’s interest in the question whether in his private life he actually behaved like his character . It was clear that the actor X could not be identified with the fictitious character of GPE Y that he played . The fact that X had his fan clubs and had made public appearances as the actor who played the part of GPE did not alter that finding . It could well be that X ’s appearance , his manner of presenting himself , and the relaxed attitude portrayed in his films appealed to others , particularly a young audience . That did not mean , though , that others saw in him a moral role model whose image should be corrected by the newspaper report in question .

The publications submitted by the applicant company were indeed evidence that X was hugely popular , but did not support the contention that he had used confessions about his private life to attract the public ’s attention . Nor was the newspaper report justifiable on the ground that X had been arrested in public , in a tent , because the drug had actually been consumed in the men ’s toilets , that is , in a place that fell within the protected private sphere , and out of public view . Lastly , even if it were to be established that ORG ’s arrest was a matter of substantial public interest , the same could not be said of the description and characterisation of the offence committed out of public view .

Lastly , while upholding the conclusions of ORG regarding the role of the GPE public prosecutor ’s office , ORG stated that the applicant company ’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor ’s office had led it to believe that the report was lawful . The illegal disclosure by the public prosecutor ’s office did not , however , make publication by the applicant company legal . ORG accordingly reduced the agreed penalty to ORG CARDINAL . It refused leave to appeal on points of law because its judgment did not conflict with the case - law of ORG .

On DATE ORG dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions ( Anhörungsrüge ) . It stated that when balancing the public ’s interest in being informed about public criminal proceedings against an interference with the defendant ’s private sphere , ORG in accordance with the criteria established in its case - law . There was no evidence that the relevant criteria for the balancing exercise had been disregarded . ORG stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard .

On DATE ORG granted an application by X for an injunction against any further publication of the second article .

By a judgment of CARDINAL DATE , ORG granted X ’s application in the main proceedings , ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay ORG in costs , plus statutory interest accrued from DATE . It based its decision on essentially the same grounds as those set out in its judgment of CARDINAL DATE ( see paragraphs DATE above ) . It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of ORG of DATE ( see paragraph CARDINAL below ) in that the person concerned in that case , Prince PERSON DATE PERSON , was much more widely known than X , so the press had been entitled to report on the substantial penalty imposed in that case .

On DATE ORG dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of DATE ( see paragraphs CARDINAL above ) . On the subject of the relevant criteria for weighing the conflicting interests , it stated that , according to the judgment of ORG of DATE ( see paragraph CARDINAL below ) , the fact that a person was a prominent figure or CARDINAL known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct . In the present case , the public ’s interest in being informed and entertained , which derived from the fact that X was a well - known figure and starred as a superintendent in a television series , was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose ( informationelle PERSON ) .

The applicant company ’s reliance on the high audience rating of the television series Y. did not , in ORG opinion , prove that X. had served as a role model or a counter model . If a role model existed for CARDINAL of viewers , the role model in question was the character of the superintendent . ORG reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view , in the men ’s toilets . The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene , but it had not been established that other persons present in the tent had noticed that X had taken cocaine .

ORG added that whilst the fact that the “ quality press ” had reported the case might indicate that there was a not insignificant ( nicht geringes ) interest in reporting it , that was not a basis on which to conclude that the interference with X ’s right to the protection of his personality rights had been lawful .

ORG refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case - law of ORG , in particular the latter ’s judgment of DATE ( see paragraph CARDINAL below ) .

On DATE ORG refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case - law . On DATE it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions .

On DATE a CARDINAL - judge panel of ORG declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings . It stated that it was not giving reasons for its decision .

On DATE and DATE ORG ordered the applicant company to pay X CARDINAL penalty payments of ORG CARDINAL,CARDINAL , each one for having breached the order of DATE ( see paragraph CARDINAL above ) . The court criticised the applicant company for , inter alia , publishing in DATE of the DATE newspaper PERSON and on the newspaper ’s internet page ( welt.de ) on CARDINAL DATE the following statement by CARDINAL of its editors :

“ Accordingly , we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine , even though he was a very well - known recidivist and the offence was committed at the beer festival in GPE . ”

Article CARDINAL § CARDINAL of LAW ( ORG ) provides that anyone who , intentionally or negligently , unlawfully infringes another ’s right to life , physical integrity , health , freedom , property or other similar right , shall be liable to make compensation for the resulting damage .

In accordance with LAW , where another ’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference . If there are reasonable fears that further damage will be inflicted , the owner may seek an injunction .

In its judgment of DATE ( no . Vi ZR CARDINAL ) ORG reiterated its established case - law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect . The facts of the case were a fine and a prohibition on driving imposed by the NORP courts for speeding on a motorway ( CARDINAL instead of QUANTITY ) on a person known to the public . ORG found , firstly , that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations , and , secondly , that the offence had put other motorists at considerable risk . Moreover , both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well - known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned . ORG pointed out that the ORG ’s judgment in the case of PERSON v. GPE of DATE ( no . CARDINAL , ORG CARDINALVI ) allowed of no other conclusion . The articles ( and photos ) in that case had concerned only scenes from PERSON daily life , and had aimed merely to satisfy the curiosity of a particular readership regarding her private life .

In a decision of CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , a CARDINAL - judge panel of ORG decided not to entertain a constitutional appeal lodged against the judgment of ORG and upheld the latter ’s findings .

The relevant passages of Recommendation ( Rec(CARDINAL)CARDINAL of ORG to member states on the provision of information through the media in relation to criminal proceedings , adopted on DATE at the NORP meeting of ORG , read as PERSON

Recalling that the media have the right to inform the public due to the right of the public to receive information , including information on matters of public concern , under LAW , and that they have a professional duty to do so ;

Recalling that the rights to presumption of innocence , to a fair trial and to respect for private and family life under Articles CARDINAL and CARDINAL of the Convention constitute fundamental requirements which must be respected in any NORP society ;

Stressing the importance of media reporting in informing the public on criminal proceedings , making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system ;

Considering the possibly conflicting interests protected by Articles CARDINAL , CARDINAL and DATE of the LAW and the necessity to balance these rights in view of the facts of every individual case , with due regard to the supervisory role of ORG in ensuring the observance of the commitments under the Convention ;

Recommends , while acknowledging the diversity of national legal systems concerning criminal procedure , that the governments of member states :

take or reinforce , as the case may be , all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation , within the limits of their respective constitutional provisions ,

Appendix to Recommendation Rec(CARDINAL)CARDINAL

Principles concerning the provision of information through the media in relation to criminal proceedings

ORG of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .

Principle CARDINAL - Presumption of innocence

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial .

Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .

Principle CARDINAL - Accuracy of information

ORG authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions . In the latter case , this should be clearly indicated to the media .

ORG to information

When journalists have lawfully obtained information in the context of on - going criminal proceedings from judicial authorities or police services , those authorities and services should make available such information , without discrimination , to all journalists who make or have made the same request .

Principle CARDINAL - Protection of privacy in the context of on - going criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”

The relevant passages of this resolution , adopted by ORG on DATE , read as follows:-

The ORG is aware that personal privacy is often invaded , even in countries with specific legislation to protect it , as people ’s private lives have become a highly lucrative commodity for certain sectors of the media . The victims are essentially public figures , since details of their private lives serve as a stimulus to sales . At the same time , public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy .

Public figures are persons holding public office and/or using public resources and , more broadly speaking , all those who play a role in public life , whether in politics , the economy , the arts , the social sphere , sport or in any other domain .

It is often in the name of a CARDINAL - sided interpretation of the right to freedom of expression , which is guaranteed in LAW , that the media invade people ’s privacy , claiming that their readers are entitled to know everything about public figures .

Certain facts relating to the private lives of public figures , particularly politicians , may indeed be of interest to citizens , and it may therefore be legitimate for readers , who are also voters , to be informed of those facts .

It is therefore necessary to find a way of balancing the exercise of CARDINAL fundamental rights , both of which are guaranteed by ORG : the right to respect for one ’s private life and the right to freedom of expression .

The ORG reaffirms the importance of every person ’s right to privacy , and of the right to freedom of expression , as fundamental to a NORP society . These rights are neither absolute nor in any hierarchical order , since they are of equal value .

NORP However , the ORG points out that the right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media .

The ORG believes that , since all member states have now ratified LAW , and since many systems of national legislation comprise provisions guaranteeing this protection , there is no need to propose that a new convention guaranteeing the right to privacy should be adopted . ... ”


Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under Art. 6-1 with regard to fairness, Art. 8 and P1-1

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

On DATE the applicant 's wife requested ORG to hold a preliminary hearing with a view to instituting divorce proceedings . In turn , on DATE the applicant brought an action before the ORG claiming maintenance for the couple 's son , who was at the time in the applicant 's care . ORG held hearings on the maintenance claim on DATE and DATE . On DATE the applicant 's wife formally filed for divorce . The divorce proceedings were subsequently joined to the claim for maintenance .

In the joined proceedings , hearings took place on DATE , DATE , CARDINAL DATE and DATE , DATE and DATE .

On DATE ORG pronounced , in a partial decision , the couple 's divorce . In line with the parties ' agreement , it granted the mother custody of their son . The court ordered the applicant to pay maintenance , regulated his right of access to the boy and ordered the parties to share the use of their flat which was in common ownership . The court relied on the testimonies of numerous witnesses , including a social worker , the applicant 's CARDINAL step - children born out of the mother 's previous marriage , and the couple 's son .

On the applicant 's appeal of CARDINAL DATE , ORG held a hearing on DATE . At a hearing on DATE ORG allowed the applicant 's appeal and amended ORG decision in the part concerning the amount of maintenance and the details of his access rights .

On DATE the proceedings were resumed before ORG in respect of the division of the matrimonial property . A hearing was held on DATE .

A further hearing took place on DATE . On the latter date ORG decided to obtain various expert opinions .

On DATE and DATE , respectively , property and valuation experts submitted their opinions .

At a hearing on DATE ORG appointed a motor - vehicle expert to prepare an opinion . On DATE the expert was urged to submit his opinion . On DATE the expert informed the court that the applicant could not be located at the address notified to him . On DATE the expert was requested to submit an opinion as soon as possible . On DATE the expert submitted his opinion .

Further hearings were held on DATE , CARDINAL DATE and DATE . Meanwhile , on DATE the applicant requested further expert evidence to be taken . Although it experienced difficulties in finding an expert jeweller , ORG finally appointed CARDINAL on CARDINAL DATE and requested the parties to contact him . On DATE the expert submitted his opinion .

On DATE an expert psychologist submitted his opinion . A hearing scheduled for DATE was adjourned at the applicant 's request .

The next hearing took place on DATE . ORG ordered the property expert to complete his opinion of DATE , taking into account any possible changes which might have occurred in the meantime . On DATE ORG requested the expert to proceed as a matter of urgency . On DATE the expert submitted his opinion , which was based on an on - site inspection of the property .

Further hearings took place on DATE and DATE . On the latter date both the applicant and his representative failed to appear before the court . Meanwhile , ORG made enquiries with the parties ' bank as regards the mortgage situation of their flat . On DATE the court requested the parties to waive their rights to secrecy in respect of their bank details . The waivers were sent to the bank on DATE . On DATE ORG made a further enquiry with the bank as regards payments transferred from the parties ' bank account to cover housing expenses . On DATE ORG ordered the applicant to submit his waiver in the form required by the bank . The bank submitted the requested banking details on DATE .

At the hearings of DATE and CARDINAL DATE several witnesses were heard on the use of the parties ' flat . On DATE ORG carried out an inspection of the flat .

On DATE ORG ruled on the division of the matrimonial property . On DATE , respectively , the applicant and the defendant appealed .

The Veszprém County Regional Court held hearings on DATE , DATE . During this period the parties were involved in negotiations aimed at reaching an agreement on the sale of their flat . On the parties ' joint request of DATE , ORG discontinued the proceedings on DATE and annulled the decision of CARDINAL DATE .