Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

His wife died on DATE leaving dependent children . His claim for widows’ benefits was made in DATE and on QUANTITY May CARDINAL it was determined that he was entitled to Widowed Parent ’s ORG as from DATE . The applicant however requested that the claim be treated as from the date of his wife ’s death , or alternatively that he be allowed to claim the equivalent widow ’s benefit . On DATE he made a formal application for widow ’s benefit which was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The relevant domestic law and practice are described in the ORG ’s judgment in the case of PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


POPOV and OTHERS, VAKARELOVA, MARKOV and BANKOV v. BULGARIA

All applicants are practising medical doctors . Some of them are members of ORG ( LOC лекарски съюз “ – “ ORG ” ) , established in DATE by ORG and Dentists Act ( „ Закон за съсловните организации на лекарите и стоматолозите “ – “ PODDA ” or “ Act ” ) , while some have refused to become such members .

The applicants in the first application ( no . CARDINAL ) , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON and PERSON , lawyers practising in GPE .

The applicant in the second application ( no . CARDINAL ) , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by PERSON and PERSON PERSON , lawyers practising in GPE .

The applicant in the third application ( no . CARDINAL/CARDINAL ) , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .

The applicant in the fourth application ( no . CARDINAL/CARDINAL ) , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG by PERSON and PERSON , lawyers practising in GPE .

The ORG was originally established in DATE as a professional association of medical doctors . During World War II membership in the union became compulsory . After the war the union was liquidated .

Similarly , ORG in GPE ( „ GPE стоматолозите в GPE “ – “ FAC ) was established in DATE as a professional association of dentists and ceased to exist after World War II .

In DATE an organisation named ORG was founded by a group of medical doctors . It was registered as a notforprofit association under ORG ( the statute governing this type of organisations ) . The association was active on the whole territory of GPE and had numerous members . The applicant in application no . CARDINAL , PERSON , was one of its members . DATE she chaired the regional section of the ORG in ORG .

On DATE ORG adopted ORG . The LAW was published in ORG on DATE and entered into force on DATE . It established CARDINAL organisations : the ORG and the ORG , and provided , in paragraph CARDINAL of its transitional and concluding provisions , that the CARDINAL organisations were the respective successors of the ORG of DATE and the UDB of DATE . By virtue of PODDA all practising medical doctors and dentists in the country were obliged to become members of , respectively , the newly established ORG and ORG . Those medical doctors and dentists who were not practising could , but were not obliged to , become members . PODDA introduced amendments to LAW whereby a medical doctor or a dentist working under an employment contract who had not become a member of the respective union was liable to be dismissed from work without notice and became criminally liable if he or she continued to practise .

In DATE sixty Members of ORG requested ORG to declare PODDA unconstitutional . They argued that compulsory membership in the ORG and the ORG went against LAW , enshrining , inter alia , negative freedom of association . They further submitted that LAW infringed LAW , guaranteeing the right to work , and also the principle that government functions should not be entrusted to public organisations without their express consent . They also maintained that the LAW created undue privileges for the CARDINAL unions to the detriment of other organisations and that it regulated matters which should have been left to the discretion of the ORG governing bodies . Finally , the MPs asserted that section CARDINAL(CARDINAL)(CARDINAL ) of ORG was vague and could lead to unjustified gathering of irrelevant information about ORG and ORG members .

The Constitutional Court gave judgment on DATE . In respect of the allegation that ORG infringed the medical ORG and NORP negative freedom of association it held as follows :

Through PODDA the legislature regulated the structure , the organisation and the activities of the professional organisations of the medical doctors and the dentists , the conditions for practising medicine and odontology , and the responsibility for breaches of professional ethics . According to section CARDINAL(CARDINAL ) of the LAW the professional organisation of medical doctors is the ORG , and that of dentists – the ORG . Section CARDINAL(CARDINAL ) provides that all medical doctors and dentists who practise their profession must be members of the ORG or the ORG , respectively .

The [ Members of ORG ] who filed the request maintain that the above provisions contravene LAW , LAW and LAW and QUANTITY of the LAW of GPE , as well as international treaties ... which ... are part of the domestic law of the country ... It is submitted that by requiring all practising medical doctors and dentists to be members of the ORG and LAW infringes the constitutionally protected freedom of association ( LAW ) , because it brings about an element of compulsion which is irreconcilable with that freedom .

In addition , according to the request , the provisions of the challenged Act run counter to LAW , which proclaims on the one hand the ORG right to work and on the other – the obligation for the ORG to create the conditions for the realisation of that right .

The Constitutional Court finds that these submissions and the arguments presented in support of the request are illfounded .

I.CARDINAL . PODDA does not contain a provision which excludes the right of other organisations , including professional and tradeunion type , founded by medical doctors and dentists , to exist alongside the ORG and the ORG . It does not proscribe the establishment of associations by medical doctors and dentists under LAW or another statute . Therefore , the LAW does not run counter to LAW . It does not affect the constitutionally protected freedom of association , because that freedom pertains to privatelaw associations , including trade unions under LAW . This constitutionally recognised freedom includes not only the freedom to take up the initiative and to form an association , respectively to become a member of an existing one , but also the socalled “ negative freedom ” , i.e. the right to not become a member of an existing association .

NORP PODDA does not lie on the plane of LAW . It is an LAW which creates publiclaw corporations with compulsory membership of medical doctors and dentists . These corporations are endowed with certain publiclaw functions : to organise , control and discipline medical doctors and dentists . Accordingly , freedom of association , proclaimed by LAW , does not apply to them : they are created by statute and not through the free will of their members .

ORG considers that , when deciding on the applicability of ORG DATE of the LAW to publiclaw corporations , it must have regard to the caselaw of ORG and the interpretation of LAW of LAW [ ( “ ORG ” ) ] . This provision corresponds to LAW . This is so , because [ ORG ] is part of domestic law and , according to its LAW , the judgments of ORG [ and the interpretations of the ORG contained therein ] are binding on all ORG bodies in the country .

[ In ] a judgment of ORG in GPE of CARDINAL DATE , the issue [ was ] whether the compulsory membership of medical doctors in a publiclaw corporation – “ ORG ” – , created by act of the king of GPE , ran counter to LAW ORG ( which corresponds to LAW ) . That corporation ’s aim was to protect the ORG health by exercising control over the practice of medicine . This function led to [ the giving ] a number of administrative powers to the “ Ordre [ des médecins ] ” , including the power to discipline the medical doctors registered with it . According to the unanimous judgment of ORG , the corporation of NORP medical doctors “ Ordre [ des médecins ] ” could not be considered as an association within the meaning of LAW ORG and [ compulsory membership in it ] did not run counter to this Article .

It should be pointed out that a similar opinion was expressed by ORG and by the prevailing NORP doctrine in respect of the various publiclaw corporations ( the socalled “ chambers ” ) which exist in GPE , such as : the ORG , notaries’ , medical ORG , dentists’ , pharmacists’ , handicraftsmen ’s , etc . chambers . According to this opinion , the compulsory membership of the persons who practise the respective professions in these chambers does not contravene LAW which proclaims freedom of association , because that Article concerns the formation of notforprofit associations and of companies , which are of privatelaw character and thus do not fall in the category of publiclaw corporations . For this reasons these corporations [ were ] not [ considered ] unconstitutional ...

NORP In order to better understand the fundamental difference between a publiclaw corporation with compulsory membership of all persons who practise the respective profession and a voluntary privatelaw association , regard must be had to ORG Human Right ’s judgment of CARDINAL DATE in the case of PERSON , PERSON and PERSON [ v. GPE , series A no . CARDINAL ] . Its subjectmatter was an agreement for the compulsory membership of employees in a trade union . Since LAW ORG ( corresponding to LAW ) applies to trade unions , ORG in GPE found in favour of the applicants , because it found that the freedom of association in trade unions could not be restricted through compulsory membership in a given trade union under the threat of dismissal from work of an employee who was not a member .

The abovementioned judgments of ORG draw a sharp distinction between publiclaw corporations , which have compulsory membership , and privatelaw associations , including trade unions . LAW ORG , corresponding to LAW , applies only to privatelaw associations . The conclusion drawn by ORG is that ORG does not contravene LAW .

A decisive argument in support of this conclusion is LAW . Article CARDINAL provides that the Bar is selfgoverning and provides for the adoption of a special statute on its organisation and activities . It is common knowledge that in many countries , and in our country even before LAW of CARDINAL , the practising of the legal profession was subject to membership in the respective lawyers’ organisation , i.e. registration of the person wishing to practise as a lawyer in this organisation . It is therefore beyond question that the Bar is a telling example of a publiclaw corporation . These elements abound in our GPE [ of DATE ] . It is true that the LAW does not expressly provide that the medical ORG and dentists’ unions should be corporations with publiclaw elements . But this is by no means necessary . The formation of various corporations with publiclaw elements is a matter of legislative discretion and is not dependent upon an express constitutional command . By its very nature the LAW can not and should not exhaustively enumerate the permissible forms of organisation . But when it regulates the Bar , it clearly indicates that organisations like it are compatible with LAW . Such an organisation is also ORG ( see LAW [ of DATE ] ) . Such is also the LAW challenged before the ORG .

Through this Act the ORG performs its obligation under LAW to protect the ORG health and to provide them with highquality health care . By entrusting to medical doctors and dentists themselves the supervision of the CARDINAL professions through corporations ran by them , the challenged Act manages to achieve in the most expedient manner the observance of LAW and LAW , as well the regulation of the profession . Otherwise these functions would have to be entrusted to civil servants who would not be as competent and would cost considerable amounts of money to the ORG budget . This explains why the manner of organisation of medical doctors and dentists used by ORG is also used in a number of NORP countries such as GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , [ and ] GPE .

NORP PODDA is necessary also because of the inseverable link between it and FAC [ of DATE ( „ Закон за здравното осигуряване “ – “ ORG ” ) ] , because health insurance , guaranteed by LAW , may function only if the organisations of medical doctors and dentists created by PODDA exist . These organisations are parties to ORG concluded for the purpose of carrying out the activities under ORG . By DATE of ORG , the National Framework Agreement regulates the conditions for and the manner of selecting medical service providers , the forms , conditions and manner in which medical services are dispensed , the amount , prices and method of payment for the medical services and drugs , as well as all other matters relating to health security . In other words , not a single health security activity could be carried out without this Agreement , which would deprive the citizens of the possibility to exercise their constitutionally guaranteed ( LAW [ of LAW ] ) right to health security . This convincingly demonstrates that not only does PODDA not contravene LAW , but that it is in fact mandated by LAW , so that the right guaranteed by LAW becomes a social reality .

As regards the allegation that section CARDINAL(CARDINAL)(CARDINAL ) of ORG was vague and allowed the gathering and retention of personal information , ORG held :

“ ... it is true that point CARDINAL [ of section GPE ) ] has a blanket wording . However , it is sufficient to connect this provision with section CARDINAL of [ PODDA ] in order to see that the term “ other circumstances ” means a number of facts set forth in section PERSON ) , without being expressly referred to in section GPE ) points CARDINAL to CARDINAL , but which should nevertheless be entered in the register ( e.g. length of service , indication that a doctor is a foreign national , [ and ] criminal record ) . If sections DATE and DATE are construed in connection with one another , the conclusion could and should be that “ other circumstances ” means exactly the facts mentioned in section CARDINAL . Thus , the blanket wording of point CARDINAL of section GPE ) becomes clear and the alleged infringement of the rights set forth by LAW is excluded . ”

CARDINAL judges dissented from ORG judgment , each writing an individual dissenting opinion .

The dissenting judges were of the opinion , inter alia , that the ORG and the ORG could not be considered as falling outside the scope of LAW . The argument that they had been created by law was not persuasive because ORG had merely branded CARDINAL notforprofit associations “ professional organisations ” and had endowed them with certain publiclaw functions without declaring their liquidation or transformation or annulling the court ’s decisions for their registration ; it was doubtful whether this could be done by an ORG . The unions were essentially privatelaw associations , much like the one at issue in the case of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) . Also , the notion of publiclaw functions was not unambiguous and could not serve as a basis for excluding the unions in question from the ambit of LAW . Indeed , by section MONEY ) of ORG , the CARDINAL unions represented their members and protected their professional rights and interests , which were functions of a typical association or trade union .

“ CARDINAL . Citizens’ associations shall serve for fulfilling and protecting ORG interests .

ORG associations , including trade unions , may not pursue political goals or carry out political activities that are characteristic solely of political parties . ”

“ The private life of the citizens shall be inviolable . Everyone shall have the right to be protected against illegal interference in his private or family life and against encroachments on his honour , dignity and reputation . ”

“ CARDINAL . Citizens may associate freely .

Organisations whose activity is directed against the sovereignty , the territorial integrity of the country [ or ] the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity , towards the infringement of the ORG rights and freedoms , as well as organisations which seek to achieve their goals through violence , shall be prohibited . ”

The structure , the organisation and the activities of the professional organisations of the doctors and dentists – the ORG and the UDB – , are regulated by ORG ( section CARDINAL(CARDINAL ) ) .

By section CARDINAL of the LAW , all practising medical doctors and dentists must be members of the respective union , whereas the membership of nonpractising doctors and dentists is optional .

ORG provides that the functions of the ORG and the ORG are as follows : a ) to represent their members and protect their professional rights and interests ; b ) to represent their members as parties to ORG with ORG ; c ) to draft a Professional Ethics Code for medical doctors , respectively dentists , and to exercise control for compliance with that Code ; d ) to adopt , together with ORG , Rules for ORG , to submit them for approval by ORG and to exercise control for compliance with them ; e ) to impose the sanctions which ORG provides for medical malpractice ; f ) to draw up and keep a national and regional registers of their members ; g ) to participate in the organisation and conducting of professional qualification courses for doctors and dentists ; h ) to appoint representatives to ORG at ORG ; i ) to express opinions on draft bills and regulations in the area of public health ; j ) to cooperate with other organisations and institutions in the country and abroad ; k ) to provide assistance to their members and their families in case they need it ; l ) to carry out any other activity which their statutes provide for ( section CARDINAL ) .

ORG provides that the ORG and the ORG are legal persons and sets forth their structure and bodies . By CARDINAL of the LAW , the ORG and the ORG have regional sections in all municipalities of the country . All practising medical doctors and dentists within a given municipality must be members of the regional section of the ORG or the ORG , respectively . The central bodies of the ORG and the ORG are their conventions ( consisting of the elected representatives of their regional sections – section CARDINAL(CARDINAL ) ) , their managing boards ( consisting of a chairperson , deputychairpersons , secretarygeneral and members – section CARDINAL ) , their control commissions ( consisting of a chairperson and members – section CARDINAL ) ) , and their professional ethics commissions ( consisting of a chairperson and members – section CARDINAL(CARDINAL ) ) . The regional bodies of the unions are the general meetings of all practising doctors , respectively dentists , in the region ( consisting of the delegates DATE at a CARDINAL to CARDINAL rate DATE of all doctors or dentists within the given region – section CARDINAL(CARDINAL ) ) , the managing boards of the regional sections ( consisting of a chairperson , deputychairpersons , secretarygeneral and members – section PERSON ) ) , the control commissions of the regional sections ( consisting of a chairperson and members – section CARDINAL ) ) , and the professional ethics commissions of the regional sections ( consisting of a chairperson and members – section CARDINAL ) ) . The LAW describes in detail the powers of each of the bodies .

Under ORG , health coverage for all NORP citizens and foreigners permanently residing on the territory of GPE is provided by ORG ( „ Национална здравноосигурителна LAW of ORG ) . The ORG , which receives DATE payments in respect of all persons with health coverage ( section CARDINAL of ORG ) , enters into a ORG with the ORG and the ORG , as established by ORG ( section CARDINAL of ORG ) . ORG sets forth , inter alia , the types of medical services to which all persons with health coverage are entitled , the manner of their dispensing , and the prices that the medical service providers ( hospitals and medical doctors and dentists ) can charge the ORG and the patients for these services ( a patient pays a minimal amount every time he or she uses medical services and the remainder is paid directly by ORG ) of ORG ) . The Agreement between the ORG and the ORG and the ORG is renegotiated DATE ( section CARDINAL(CARDINAL ) of ORG ) . Thus , the ORG and the ORG represent all medical doctors and dentists for the purpose of negotiating the terms of the ORG and therefore the prices hospitals and doctors and dentists can charge the ORG for providing medical services to persons with health coverage and the manner of providing such services . The Agreement must be countersigned by ORG and is subject to control by ORG in the same manner as is delegated legislation ( решение № DATE от DATE г. по адм. д. № CARDINAL/ DATE г. , V чл. св на ORG , обн. GPE , бр. CARDINAL от DATE г. ) .

All hospitals , other medical institutions and individually practising medical doctors and dentists enter into individual contracts with the local branches of the ORG pursuant to ORG ( section CARDINAL ) of ORG ) . These contracts can not deviate from the terms of ORG ( section CARDINAL(CARDINAL ) and ( CARDINAL) of ORG ) .

Section CARDINAL ) of LAW of DATE ( „ Закон за народното здраве “ ) , as in force until DATE , and section CARDINAL(CARDINAL ) of LAW of DATE ( „ Закон за лечебните заведения “ ) , which superseded it , provide that in order to register private practice a medical doctor or a dentist has to produce a certificate to the effect that he or she has been registered with the ORG or the ORG , respectively .

LAW , as amended by ORG , provides that a medical doctor or a dentist who practises his or her profession in violation of the law is punishable with CARDINAL years’ imprisonment or a fine from one to three hundred NORP levs .

By LAW , as amended by ORG , a medical doctor or a dentist may be dismissed from work without notice if he or she had been struck off the registers kept respectively by the ORG or the ORG .

Section CARDINAL(CARDINAL ) of PODDA enumerates the kinds of information which should be entered in the registers of medical doctors and dentists kept by the regional sections of the ORG and the ORG . While points CARDINAL to CARDINAL of section GPE ) set forth specific types of information ( e.g. name , address , education , speciality ) , point CARDINAL of that section provides that in the register shall be entered “ other circumstances ” .

Section PERSON ) of ORG provides that the application for membership in the ORG , respectively the ORG , should be accompanied by a diploma , a document certifying that in case of a career interruption of DATE the medical doctor or dentist has successfully passed a validation examination , a scientific degree certificate ( if the doctor or dentist has CARDINAL ) , a document certifying the place of work and the length of service , and , for foreign nationals – a residence permit and a document certifying that have passed the requisite examinations , as well as a criminal record .

In DATE ORG adopted ORG ( „ Закон за защита на личните данни “ ) , the purpose of which was to guarantee the integrity of the person and the private life by protecting the individuals from illegal processing of personal data relating to them and to regulate the right of access to such data ( section CARDINAL ) of ORG ) .


Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

This is the applicant ’s second case before the ORG . The facts relevant to this case , as submitted by the parties , may be summarised as follows .

Given his history of mental illness , the applicant was deprived of legal capacity and placed under the guardianship of his CARDINAL sister in DATE .

From DATE until DATE he was detained in FAC pursuant to the criminal and mental health legislation . In the applicant ’s first case , the ORG held that from DATE until DATE the applicant ’s deprivation of liberty had not been “ in accordance with a procedure prescribed by law ” within the meaning of LAW as he had been held in psychiatric detention without a decision of the competent civil court ( see PERSON and PERSON v. GPE , nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL , DATE ) . He was awarded CARDINAL for non - pecuniary damage .

On DATE ORG placed the applicant in ORG and on DATE in ORG in accordance with the social care legislation . On DATE ORG held that the applicant ’s deprivation of liberty had not been “ in accordance with a procedure prescribed by law ” within the meaning of LAW as he had been held in psychiatric detention without a decision of the competent civil court . It found also that LAW had been breached because of lack of judicial review of the lawfulness of the applicant ’s detention .

On DATE the competent civil court finally examined the applicant ’s case . It ruled that the applicant could not be held in ORG . The applicant was released on DATE .


The applicant , born in DATE , is a NORP citizen who is resident in GPE . He is a driver .

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

In DATE the applicant filed a petition with the GPE Governor ’s office for leave to participate in a public auction for CARDINAL commercial taxi licence plates , which was to take place on DATE .

On DATE the ORG rejected the applicant ’s request on the ground that he did not meet the eligibility requirements for the auction .

On DATE ORG sent a letter to the applicant explaining that his request was rejected because he was earning his living not only as a driver but also as a cloth - seller , as indicated in the information in the registry of ORG in GPE . ORG further explained that , under decree no . CARDINAL/CARDINAL , only those earning their living as drivers were eligible to take part in the auction .

On DATE the applicant brought an action before ORG . He alleged that he was eligible for the auction because he worked as a driver and was a member of the ORG Drivers’ and ORG . He also stated that he had stopped working as a cloth - seller long before the auction . He asked the court to set aside ORG decision of CARDINAL DATE and to order a stay of execution of the decisions taken at the auction .

On DATE ORG set aside ORG decision of CARDINAL DATE . It held that the applicant would be eligible for similar auctions in the future . The court rejected the applicant ’s request for an order to stay the execution of the auction decisions .

On DATE the applicant brought an action before ORG against the GPE Governor ’s office . He alleged that he had suffered a loss of MONEY because he could not work as a taxicab driver as he was not admitted to the auction and could not buy a taxicab licence plate .

On DATE ORG dismissed the applicant ’s action . The court stated that even if the applicant had been admitted to the auction , he would not necessarily have succeeded in buying a taxicab licence plate . The court further considered that the applicant ’s claim was based on assumption and that he had not suffered damage . It held that the applicant would be eligible for future auctions according to ORG decision of DATE .

On DATE the applicant lodged an appeal with ORG ( ORG d’Etat ) against the judgment of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s appeal .


The applicant is a NORP national , born in DATE . He is currently serving a fifteenyear prison sentence in GPE .

He is represented before the ORG by Professor PERSON , PERSON , PERSON and PERSON , all lawyers practising in GPE .

A.

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

At the time of the events giving rise to his prosecution and conviction , the applicant was a Commissioner of Police in GPE .

In DATE the Government of DATE ordered the re - opening of a criminal inquiry into the circumstances surrounding the death of a suspect at the police headquarters in DATE which occurred when they were in opposition . In DATE , following the close of the inquiry , the applicant was charged with the following offences arising out of the incident : perjury ; wilful homicide ; giving false testimony under oath ; and CARDINAL separate charges of subornation of QUANTITY police witnesses . On DATE ORG declared the CARDINAL charges relating to witness subornation null and void .

Before the applicant ’s trial opened on DATE , the applicant , then on bail , appeared before a criminal court charged with having breached the conditions of his bail . On DATE the court revoked the applicant ’s bail , being satisfied that there was sufficient evidence to prove that the applicant had approached a prosecution witness in circumstances which showed that the intention was to corrupt the latter ’s evidence at the forthcoming trial . The court ordered a ban on the publication of these proceedings .

According to the applicant the trial opened against the background of intense and sustained media coverage and political discussion . The applicant cites among other incidents the appearance in a newspaper before the jury was empanelled of a report alleging that he had been found guilty of violations of human rights . The editor of the newspaper was subsequently found guilty on DATE of contempt of court . The court which convicted the editor considered that the report could have had a negative affect on the jury causing irreparable harm to the applicant . He also points to the fact that a witness who had failed to appear at the bail revocation proceedings was subsequently tried on a perjury charge DATE before his own trial with the result that the public learned in press reports dated CARDINAL and DATE that his bail had been revoked .

The trial commenced on DATE and was presided over by the same judge who had earlier ordered the applicant ’s bail to be revoked . Following empanelment the judge instructed the jury to disregard anything which they may have heard or read about the case .

On DATE the prosecution announced at the close of its case that it had no further evidence to present to the court . Among the witnesses called by the prosecution were CARDINAL persons who had testified against him in the earlier proceedings in which his bail had been revoked . According to the applicant the result was to allow these witnesses to give evidence on the circumstances which led to the revocation of the applicant ’s bail thus creating for him a new case to answer . QUANTITY police officers also gave evidence against the applicant . CARDINAL of these officers who had admitted to beating up the suspect had been granted a presidential pardon to secure their testimony against the applicant .

Throughout this phase of the trial the applicant took detailed notes of the case against him in order to facilitate the giving of his own evidence in rebuttal at the appropriate moment . The applicant began his testimony on DATE . When the TIME sitting was adjourned at TIME , the prosecution requested the court to disallow the applicant use of his notes . The court upheld the request and ordered the confiscation not only of the notes but also other documentation including legal materials which the applicant had assembled in his place of confinement for the purposes of preparing defence .

The TIME sitting resumed at TIME on DATE . Before the jury were admitted to the courtroom , the applicant ’s counsel informed the presiding judge that the applicant was experiencing difficulty in testifying without the aid of his notes . Submissions were made on this matter by counsel for both sides . The applicant ’s counsel insisted that the materials in the case were so voluminous that it would be impossible for any witness to remember everything without the aid of reference materials . The presiding judge decided to postpone a decision on the issue . The applicant resumed his evidence . At TIME the prosecution commenced its cross - examination of the applicant . The cross - examination was later suspended , whereupon the applicant ’s counsel again raised the issue of his client ’s notes . Both counsel entered TIME in the record of the proceedings setting out their respective views on the matter . At a later stage the presiding judge ruled as follows :

“ Until such time as the accused concludes his testimony he is precluded from having access to any writing except that indicated in section CARDINAL of LAW . ”

The applicant concluded his evidence on DATE . The following days were taken up with matters such as the hearing of witnesses requested by the jury , the defence speech , the prosecution ’s reply , the addresses to the jury and the latter ’s deliberations and verdict .

In his summing up to the jury the judge gave directions on the relevant law and stressed that it was for the jury to reach its decision on the basis of the facts and without taking into account any extraneous matters . The judge advised the jury that the applicant was to be presumed innocent until proved guilty and it was for the prosecution to prove guilt to the criminal standard of beyond reasonable doubt . He further stressed the need to subject to scrutiny the evidence of those witnesses who had testified in return for a pardon and that the applicant could not be convicted on the sole evidence of an accomplice .

On DATE the jury , after DATE of deliberations , found the applicant not guilty of the charge of wilful homicide but guilty of being an accomplice to the crime of causing grievous bodily harm resulting in death . According to the applicant he was never charged with the latter offence but was nevertheless found guilty of it . He was found not guilty of the perjury charge but guilty of giving false evidence under oath . However , on DATE the court acquitted him of the perjury charge and declared the related charge to be time - barred .

The applicant was sentenced to a term of imprisonment of DATE on the charge of being an accomplice to the crime of causing grievous bodily harm resulting in death .

On DATE ORG confirmed the judgment and sentence of the trial court . Although the court held for the first time that the confiscation of a defendant ’s notes at his trial was illegal under NORP law , it nonetheless found that no miscarriage of justice had taken place at the applicant ’s trial having regard to the strength of the evidence against him . As to the applicant ’s complaint that the fairness of the trial was impaired on account of the adverse media reporting of the case , the court held that the balance between the applicant ’s rights as an accused person and the freedom of the press had not been disturbed to the point where it could be said that the media coverage had a negative influence on the deliberations of the jury and the verdict reached . The court also ruled that the applicant had the opportunity to challenge the presence of the trial judge under domestic law . Since he had failed to do so it was no longer open to him to raise the issue of the judge ’s impartiality on appeal .

The applicant appealed to ORG contending that he had been denied a fair trial in breach of the guarantees laid down in LAW and LAW . On DATE his appeal was rejected , the court being of the opinion that the applicant ’s complaints whether taken individually or collectively did not substantiate that he had been denied a fair trial .

The applicant subsequently appealed to ORG , which in its judgment of CARDINAL DATE dismissed his appeal . ORG acknowledged that the applicant ’s right to a fair trial had been breached since the confiscation of his reference materials had seriously disrupted his defence . It stated in this regard that :

“ ... the confiscation of the notes and other books of the applicant and this after he has already started testifying and without a forewarning , certainly hindered the testimony given by him in defence , both from the factual aspect and from the psychological one and this particularly because those notes which were prepared by him to conduct the defence did not necessarily refer to evidence previously given ...

... The ORG is therefore of the opinion that in this regard and limited to this grievance , the right of the [ applicant ] to a fair hearing before the first ORG was violated ... ”

However ORG then proceeded to rule that the criminal proceedings , taken as a whole , had been fair . The court noted also that it was relevant that at no time before ORG had the applicant asked to give evidence with the assistance of those materials .

In line with the rulings of the appellate courts , ORG also found that the applicant had not adduced any concrete proof that the jury or the trial or appeal court judges had been influenced by press coverage of the proceedings or related political statements . It noted , inter alia , that the jury had taken a considerable length of time in reaching a verdict . Furthermore , the court rejected the applicant ’s challenge to the impartiality of the trial judge , inter alia , on the ground that he had not raised this matter at the appropriate moment in the trial and had not availed himself of domestic remedies for this purpose .

B. Relevant domestic law

Section CARDINAL of the LAW of GPE provides :

( CARDINAL ) Every person who is charged with a criminal offence –

( b ) shall be given adequate time and facilities for the preparation of his defence ; … ”

Sections CARDINAL - CARDINAL of the Criminal Code provide as relevant :

“ CARDINAL . ORG may , if it thinks it necessary or expedient in the interest of justice –

( c ) if it thinks fit receive the evidence , if tendered , of any witness ( including the appellant ) who is a competent but not compellable witness , and , if the appellant makes an application for the purpose , of the husband or wife of the appellant , in cases where the evidence of the husband or wife could not have been given at the trial except on such application , subject to the provisions of section CARDINAL .

Without prejudice to the generality of the last preceding section , where evidence is tendered to the court under that section , the court shall , unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal , exercise its power under that section of receiving it if –

( a ) it appears to it that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal ; and

( b ) it is satisfied that it was not adduced at the trial but that there is a reasonable explanation for the failure so to adduce it .

( CARDINAL ) Where an appeal against conviction is allowed by reason only of evidence received or available to be received by ORG under sections CARDINAL and CARDINAL or by reason of a point raised under paragraph ( b ) of subsection ( CARDINAL ) of section CARDINAL and in each case it appears to the court that the interests of justice so require , the court may , instead of directing the entry of a judgment and verdict of acquittal as provided by subsection ( CARDINAL ) of section CARDINAL or by paragraph ( b ) of subsection ( CARDINAL ) of section CARDINAL , order the appellant to be retried . ”

Section CARDINAL of the Code of ORG Procedure reads as follows :

“ A witness may refresh his memory by referring to any writing made by himself or by another person under his direction at the time when the fact occurred or immediately thereafter , or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing ; but in such case , the writing must be produced and may be seen by the opposite party .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

In a letter of CARDINAL DATE the applicant informed ORG ( ministerstvo spravedlnosti ) that in DATE and DATE PERSON , her sister - in - law living in GPE , had forced her into prostitution in PERSON establishment under threat that she would tell the applicant ’s husband that his wife had prostituted herself during her visits in GPE .

On DATE ORG informed the applicant that her criminal complaint for defamation and blackmail , to which she had joined a claim for damages , had been transferred to ORG ( okresní státní zastupitelství ) . On DATE the latter informed her that the complaint would be dealt with by ORG ( městské státní zastupitelství ) which , in turn , on DATE , transferred it to ORG ( obvodní oddělení policie ) . Having questioned the applicant on DATE and her husband and son on DATE , ORG sent it back to ORG on DATE .

On DATE and CARDINAL DATE respectively , the applicant informed ORG that she maintained her criminal complaint claiming damages of CHF MONEY ( EUR CARDINAL ) . She further criticised the prosecutor for the fact that her husband and son had been implicated in the investigation proceedings and interviewed by the police .

In a letter of DATE ORG , having summed up the previous procedural steps taken by the authorities involved in the case , replied that the hearing of the applicant ’s husband and son had been necessary in order to established the relevant circumstances . The prosecutor further noted :

“ In your letters of [ CARDINAL DATE , DATE and DATE respectively ] ... you further claimed damages of CHF MONEY . At this stage of the proceedings , ... there is nothing which would deprive you from filing a civil action for protection of ‘ personal rights’ and claim damages if you feel to be injured by the statements of Ms [ B. ] . Within the framework of the criminal proceedings , which however are not yet pending because , as you have already been said above , the case is only in a stage of examination of the facts ... , not in a stage of criminal prosecution within the meaning of the Code of Criminal Procedure , you could claim damages caused by a criminal act of a third person . ... [ T]his is , however , premature at this stage of the proceedings .

I inform you that the case is in the stage of examination within the meaning of section CARDINAL(CARDINAL ) of LAW . It was not yet possible to proceed with the criminal prosecution and , so far as you seek the financial compensation , you have to address a civil court with a civil action . ”

In a letter of DATE the ORG informed the applicant that her criminal complaint against PERSON could not be settled , ORG not yet having received letters rogatory for a NORP prosecutor to hear PERSON in GPE where PERSON had her residence .

On DATE PERSON was questioned . She denied the applicant ’s accusation .

On DATE the applicant ’s son was again questioned , but used his right not to testify . On CARDINAL DATE the applicant and her husband were reheard . They maintained the contents of their previous arguments and statements .

In a letter of DATE ORG informed the applicant that the examination of her criminal complaint was still pending and should finish by DATE .

On DATE PERSON was again questioned , denying the applicant ’s accusation . Her son corroborated PERSON statement .

On DATE the applicant was informed that the file had been sent to ORG ( ORG kriminální policie a vyšetřování ) with a proposal to institute criminal proceedings .

By a resolution ( usnesení ) of DATE ORG decided to refuse to act in a matter under section DATE ) of LAW as there was no reasonable suspicion that PERSON had committed any criminal offence . The ruling further stated :

“ Having examined the facts as provided for in section CARDINAL of LAW , [ the police authority ] did not find any facts which would prove that any criminal offence had been committed . ... Bearing in mind that criminal legal relations were not affected , no criminal prosecution of a particular person could be commenced . [ It is clear ] that [ the problem concerns ] the civil legal relations which could be settled in a civil way . ”

On DATE ORG , following the applicant ’s complaint ( stížnost ) , quashed this resolution , and sent the case back to ORG for further investigation .

By a resolution of DATE the latter , having complemented the examination of the facts , again decided to refuse to act in a matter under LAW ) of LAW as there were no factors which would confirm the applicant ’s incriminating statement that she had been blackmailed by PERSON or that the latter had defamed her .

On DATE ORG sent a copy of the resolution to the applicant .

In a letter of DATE addressed to the ORG , the applicant expressed her disappointment with the results of the examination proceedings and with the manner in which her criminal complaint had been dealt with . She pointed out that the resolution had not been notified to her .

On DATE the applicant filed a complaint against ORG resolution of DATE .

On DATE ORG ( krajský státní zástupce ) found it unsubstantiated stating , inter alia :

“ Your submission was not examined as a complaint against the aforesaid resolution ... , because while the police authority immediately dispatched the resolution ... , it did not succeed to notify it to you and , after the mail having been consigned at the post office ... , you did not collect it within DATE . DATE of this time - limit is considered ... as DATE of the delivery of the mail , from which a DATE time - limit for filing a complaint starts running . For these reasons , the complaint filed after the expiry of the time - limit had to be rejected without an examination on the merits ...

... In the examination proceedings [ the police authorities ] collected all material in evidence necessary for clarification and examination of [ your criminal complaint ] ; however , the suspicion of committing an offence was not confirmed . This conclusion does not affect the fact that you can claim damages [ against PERSON ] by way of a civil action brought to a competent court . ”

LAW governs the procedure before the formal institution ( commencement ) of criminal prosecution . Under this chapter , the police authorities inter alia receive and obtain relevant information and evidence and conduct investigations with a view to detecting criminal offences , establishing their perpetrators and preventing criminal activities ( examination proceedings DATE prověřování ) .

The procedure before the formal institution of a criminal prosecution may result in a decision to refuse to act in a matter under section CARDINALa(CARDINAL)-(CARDINAL ) ( odložení věci ) or to refer a matter to the minor offences , disciplinary or other authority under LAW ) ( odevzdání věci ) , or to institute a formal criminal prosecution ( zahájení trestního stíhání ) under section CARDINAL(CARDINAL ) .

In accordance with section CARDINAL ) , a prosecutor or police authority is to refuse to act in a matter if there is no suspicion that a criminal offence has been committed and no other steps are appropriate , such as for example referring the matter to the competent minor offences authority or disciplinary authority .

Under section DATE ) , a prosecutor or police authority is to refuse to act in a matter also if the institution ( commencement ) of a criminal prosecution is not permitted pursuant to section CARDINAL(CARDINAL ) .

Under section CARDINALa(CARDINAL ) , a prosecutor or police authority is to refuse to act in a matter if there are no factors allowing the institution of a criminal prosecution under LAW . Once the reasons for the refusal ceased to exist , the criminal prosecution shall commence .

In accordance with sections CARDINALa(CARDINAL ) and DATE ) , a copy of the decision not to act in a matter is to be served on a victim , who has a right of appeal against it . The person on the basis of whose motion the decision was given is notified about it if he or she asks for .

Section PERSON provides for a temporary refusal to act in a matter .

The institution of formal criminal prosecutions is governed by LAW , LAW . Under section MONEY ) , a police authority is to immediately instigate a criminal prosecution ( zahájení trestního stíhání ) if the information obtained indicates that a criminal offence has been committed by a particular person and if there is no reason for refusing to act in the matter pursuant to sections CARDINALa(CARDINAL ) , CARDINAL ) or DATE ) .

According to LAW , any natural person has the right to protection of his or her personal integrity ( osobnost ) , in particular his or her life and health , civil and human dignity , privacy , name and personal characteristics .

Pursuant to section CARDINAL(CARDINAL ) , any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction .

Section CARDINAL ) provides that in cases when the satisfaction obtained under Section PERSON ) is insufficient , in particular because a person ’s dignity and position in society has been considerably diminished , the injured person is entitled to compensation for non - pecuniary damage . Under paragraph CARDINAL of section CARDINAL , when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person ’s rights occurred .


No violation of Art. 6-1 as regards parliamentary immunity;No violation of Art. 6-1 as regards lack of legal aid;No violation of Art. 8;No violation of Art. 14+6;No violation of Art. 13

The applicant is a GPE national , born in DATE and living in GPE . She lives with her CARDINAL children in a house owned by the local housing association , ORG ( ORG ) .

The ORG moved the applicant and her children to CARDINAL FAC in DATE following a report that she was suffering serious racial abuse at her then current address .

Concorde Drive is in the parliamentary constituency of ORG . On DATE , the member of ORG ( MP ) for the GPE LOC constituency , Mr PERSON , initiated a debate on the subject of municipal housing policy ( and the ORG in particular ) in ORG . During the course of his speech , the MP referred specifically to the applicant several times , giving her name and address and referring to members of her family . He commented as follows :

“ The subject of anti - social behaviour by what newspapers frequently call ' neighbours from hell ' has been a staple of social housing throughout the country for some time , and the government are , of course , in the process of taking steps to provide local authorities with the power to do something about such behaviour . Whether authorities such as GPE will actually use the power is another matter .

My reason for raising the subject of CARDINAL FAC in my constituency and the behaviour of its shifting population is not just to draw attention to another example of neighbours from hell ; it is also to note that housing practices by local authorities , which it appeared had been stamped out in DATE , are beginning to re - emerge in the voluntary housing movement . ...

ORG purchased CARDINAL FAC in my constituency in DATE ... and in DATE it moved in as the new tenants [ the applicant ] and her CARDINAL children , who are now aged DATE . Her brother , currently in prison , also gives QUANTITY as his permanent address . ...

The Government 's own ORG , ' ORG , published in DATE , noted :

' Such behaviour manifests itself in many different ways and at varying levels of intensity . This can include vandalism , noise , verbal and physical abuse , threats of violence , racial harassment , damage to property , trespass , nuisance from dogs , car repairs on the street , joyriding , domestic violence , drugs and other criminal activities such as burglary . '

Inevitably , the majority – if not all – of these activities have been forced on the neighbours of CARDINAL FAC during the tenancy of that property and the garage further up the street that goes with it , by [ the applicant ] , her children and their juvenile visitors , who seem strangely reluctant to attend school during TIME , and even more adult visitors who come to the house at all times of DATE and night , frequently gaining entry by unorthodox means such as the bathroom window . Indeed , it is fair to say that there have been times when occupation of the house by the visitors has been more frequent than that of [ the applicant ] .

So far as the garages grouped further along Concorde Drive are concerned – CARDINAL of the garages automatically comes with the tenancy of No . DATE complaints consist of numerous youths hanging around , vandalising cars , climbing on and damaging the garage roofs , under the apparent leadership , or at least the spirited concurrence of the [ applicant 's ] family , adult and children , which makes improvement of those garages by other owners a complete waste of time . More seriously , arson inside the garage belonging to No . CARDINAL , and the regular destruction of its doors , have led other legitimate users of the garage to park their vehicles elsewhere for safety reasons .

But it is the conduct of [ the applicant ] and her circle which gives most cause for concern . Its impact on their immediate neighbours extends to perhaps a QUANTITY houses on either side . Since the matter was first drawn to my attention in DATE , I have received reports of threats against other children ; of fighting in the house , the garden and the street outside ; of people coming and going TIME a day – in particular , a series of men late at night ; of rubbish and stolen cars dumped nearby ; of glass strewn in the road in the presence of [ the applicant ] and regular visitors ; of alleged drug activity ; and of all the other common regular annoyances to neighbours that are associated with a house of this type . ”

The applicant denies the truth of the majority of the allegations . The MP has never tried to communicate with her regarding the complaints made about her by her neighbours and has never attempted to verify the accuracy of his comments made in his speech either before or after the debate . Shortly before the debate , the MP issued a press release to several newspapers , including the GPE - based ORG and the national ORG . The press release was subject to an embargo prohibiting disclosure until the precise time when the speech commenced . The contents of the press release were substantially the same as those of the MP 's speech . DATE , both newspapers carried articles consisting of purported extracts of the speech , although these were based upon the press release . Both articles included photographs of the applicant and mentioned her name and address . The main headline in ORG was :

“ MP Attacks ' Neighbours From Hell ' ”

In the Daily Express the headline was :

“ MP names nightmare neighbour ”

The applicant was approached by journalists and television reporters asking for her response to the ORG 's allegations and her comments were summarised in each newspaper DATE , although they were not given as much prominence .

The applicant subsequently received hate mail addressed to her at CARDINAL FAC . CARDINAL letter stated that she should “ be in houses with your own kind , not in amongst decent owners ” . Another letter stated :

“ You silly black bitch , I am just writing to let you know that if you do not stop your black nigger wogs nuisance , I will personally sort you and your smelly jungle bunny kids out . ”

The applicant was also stopped in the street , spat at and abused by strangers as “ the neighbour from hell ” .

On DATE a report was prepared for the ORG by a group which monitors racial harassment and attacks . The report found that “ it has now come to the point where [ the applicant ] has been put in considerable danger as a result of her name being released to the public ” . The report recommended that the applicant be re - housed as a matter of urgency . She was re - housed in DATE and her children were obliged to change schools .

On DATE the applicant wrote through her solicitors to the MP outlining her complaints and seeking his comments thereon . The letter was referred to ORG by the MP . The Speaker 's representative replied to the MP on CARDINAL DATE to the effect that the ORG 's remarks were protected by absolute parliamentary privilege :

“ Subject to the rules of order in debate , Members may state whatever they think fit in debate , however offensive it may be to the feelings or injurious to the character of individuals , and they are protected by this privilege from any action for libel , as well as from any other molestation . ”

This letter was copied and forwarded to the applicant 's solicitors in DATE .

Also on DATE , the applicant 's solicitors wrote to the then Prime Minister , Mr PERSON , asking that , as leader of the political party to which Mr PERSON belonged , he investigate the applicant 's complaints and take appropriate action . ORG replied on DATE , stating that :

“ It is a matter for individual Members of ORG to decide how they deal with their constituents and it is not for the Prime Minister to comment . There is a strict Parliamentary convention that Members of ORG do not intervene in the affairs of other Members ' constituencies and this applies equally to the Prime Minister . ”

Words spoken by MPs in the course of debates in ORG are protected by absolute privilege . This is provided by LAW , which states :

“ ... the freedome of speech and debates or proceedings in ORG ought not to be impeached or questioned in a court or place out of Parlyament . ”

The effect of this privilege was described by Lord Chief Justice PERSON in Ex parte PERSON ( DATE ) Queen 's Bench Reports CARDINAL at CARDINAL :

“ It is clear that statements made by Members of either ORG of ORG in their places in the ORG , though they might be untrue to their knowledge , could not be made the foundation of civil or criminal proceedings , however injurious they might be to the interest of a third party . ”

Statements made by MPs outside ORG are subject to the ordinary laws of defamation and breach of confidence , save where they are protected by qualified privilege .

NORP The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest . In ORG [ DATE ] CARDINAL Appeal Cases CARDINAL , which concerned allegations made in the NORP press about an NORP political crisis in DATE , Lord PERSON of GPE stated in ORG , at page CARDINAL :

Depending on the circumstances , the matters to be taken into account include the following . The comments are illustrative only . CARDINAL . The seriousness of the allegation . The more serious the charge , the more the public is misinformed and the individual harmed , if the allegation is not true . CARDINAL . The nature of the information , and the extent to which the subject matter is a matter of public concern . CARDINAL . The source of the information . Some informants have no direct knowledge of the events . Some have their own axes to grind , or are being paid for their stories . CARDINAL . The steps taken to verify the information . CARDINAL . The status of the information . The allegations may have already been the subject of an investigation which commands respect . CARDINAL . The urgency of the matter . News is often a perishable commodity . CARDINAL . Whether comment was sought from the plaintiff . He may have information others do not possess or have not disclosed . An approach to the plaintiff will not always be necessary . CARDINAL . Whether the article contained the gist of the plaintiff 's side of the story . CARDINAL . The tone of the article . A newspaper can raise queries or call for an investigation . It need not adopt allegations as statements of fact . CARDINAL . The circumstances of the publication , including the timing . ”

Press coverage , to the extent that it fairly and accurately reports parliamentary debates , is generally protected by a form of qualified privilege which is lost only if the publisher has acted “ maliciously ” . “ Malice ” , for this purpose , is established where the report concerned is published for improper motives or with “ reckless indifference ” to the truth . A failure to make proper enquiries is not sufficient in itself to establish malice , but it may be evidence from which malice ( in the sense of reckless indifference to the truth ) can reasonably be inferred .

MPs can waive the absolute immunity which they enjoy in ORG as a result of LAW , which provides :

“ ( CARDINAL ) Where the conduct of a person in or in relation to proceedings in ORG is in issue in defamation proceedings , he may waive for the purposes of those proceedings , so far as concerns him , the protection of any enactment or rule of law which prevents proceedings in ORG being impeached or questioned in any court or place out of ORG .

( CARDINAL ) Where a person waives that protection –

( a ) any such enactment or rule of law shall not apply to prevent evidence being given , questions being asked or statements , submissions , comments or findings being made about his conduct , and

( b ) none of those things shall be regarded as infringing the privilege of either ORG of ORG .

( CARDINAL ) The waiver by CARDINAL person of that protection does not affect its operation in relation to another person who has not waived it .

( CARDINAL ) Nothing in this section affects any enactment or rule of law so far as it protects a person ( including a person who has waived the protection referred to above ) from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG . ”

General control is exercised over debates by the Speaker of each ORG of ORG . Each ORG has its own mechanisms for disciplining members who deliberately make false statements in the course of debates . Deliberately misleading statements are punishable by ORG as a contempt . Alternatively , as ORG on Procedure ( DATE ) has observed :

“ ... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the ORG . He can approach his Member of ORG with a view to his tabling DATE , or an amendment where appropriate ; there may be cases which can be raised through Questions if some ministerial responsibility can be established ; he can petition the ORG , through a Member ; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified . We believe that in these circumstances , the ORG would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another , particularly if the latter was the source of the statement complained of , and so long as the courtesies of proper notification were observed . ”

Under Schedule CARDINAL , Part II of LAW DATE , “ [ p]roceedings wholly or partly in respect of defamation ” are excepted from the scope of the civil legal aid scheme .

“ Green Form ” assistance is available to potential litigants with insufficient means in order to allow them to receive TIME free legal advice from a solicitor in cases of alleged defamation . The time can be extended upon application .

Under section CARDINAL of ORG DATE , solicitors may enter into conditional fee agreements in respect of any type of proceedings specified in an Order made by the Lord Chancellor . A conditional fee agreement is defined under that section as an agreement in writing between a solicitor and his client which provides that the solicitor 's fees and expenses , or any part of them , are to be payable only in specified circumstances . LAW DATE ( LAW of DATE ) permitted conditional fee agreements in relation to “ all proceedings ” . The Order entered into force on DATE . A conditional fee agreement can not prevent an unsuccessful litigant from being potentially liable to pay all or part of his opponent 's costs in connection with the proceedings .

The limitation period applicable to defamation proceedings in respect of statements made in DATE was DATE pursuant to section CARDINAL of LAW , as inserted by section CARDINAL(CARDINAL ) of ORG DATE .

A joint committee of both ORG was set up in DATE and tasked with reviewing the law of parliamentary privilege . The committee received written and oral evidence from a wide variety of sources from within GPE and abroad and held CARDINAL sessions of evidence in public . Its report was published in DATE . LAW sets out its conclusions on parliamentary immunity :

“ CARDINAL . The immunity is wide . Statements made in ORG may not even be used to support a cause of action arising out of ORG , as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in ORG as proof of malice . The immunity is also absolute : it is not excluded by the presence of malice or fraudulent purpose . Article CARDINAL protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly . ... In more precise legal language , it protects a person from legal liability for words spoken or things done in the course of , or for the purposes of or incidental to , any proceedings in ORG .

A comparable principle exists in court proceedings . Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation . The rationale in the CARDINAL cases is the same . The public interest in the freedom of speech in the proceedings , whether parliamentary or judicial , is of a high order . It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy .

It follows that we do not agree with those who have suggested that members of ORG do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government . Unlike members of ORG , local councillors are liable in defamation if they speak maliciously . We consider it of utmost importance that there should be a national public forum where all manner of persons , irrespective of their power or wealth , can be criticised . Members should not be exposed to the risk of being brought before the courts to defend what they said in ORG . Abuse of parliamentary freedom of speech is a matter for internal self - regulation by ORG , not a matter for investigation and regulation by the courts . The legal immunity principle is as important DATE as ever . The courts have a duty not to erode this essential constitutional principle . ”

DATE provides :

“ ( a ) ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions .

( b ) The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph ( a ) above . For this purpose ORG shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members . In addition , a special agreement shall be concluded with ORG of GPE defining the privileges and immunities which the ORG shall enjoy at its seat . ”

In pursuance of paragraph ( b ) above , the member GPE , on DATE , entered into LAW . This provides , in its relevant parts , as follows :

“ Article CARDINAL

Representatives to ORG and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions .

Article CARDINAL

During the sessions of ORG , ORG and their substitutes , whether they be members of ORG or not , shall enjoy :

( a ) on their national territory , the immunities accorded in those countries to members of ORG ;

( b ) on the territory of all other member GPE , exemption from arrest and prosecution . ... ”

DATE provides :

“ Privileges , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . ”

Article CARDINAL of the LAW on the Privileges and Immunities of ORG , adopted in accordance with LAW establishing a ORG and a ORG of ORG , provides :

“ Members of ORG shall not be subject to any form of inquiry , detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties . ”

Under LAW members of the PERSON ( the lower house of ORG ) may never be held liable for votes cast in the exercise of their functions or on the ground of oral or written statements made in the course of their functions – so - called “ professional immunity ” . In these matters , members enjoy immunity from criminal , civil and administrative proceedings . The President however may require a member to keep to the subject or call the member to order if he / she violates the decency and dignity of the ORG or makes defamatory statements ( section CARDINAL of LAW ) .

Under LAW , criminal or civil proceedings against an MP may be taken without the consent of the NORP only where they are “ manifestly not connected with the political activity of the member in question ” – so - called “ non - professional immunity ” . MPs may therefore be subject to civil proceedings , the issue of whether the matter has manifestly no connection with their duties being determined by the prosecuting authorities . Where the authority considers that that connection is manifest or unclear , it must seek the consent of the PERSON . Where the MP concerned or CARDINAL of the members of ORG require it , consent must also be asked of the PERSON . According to the prevailing view , this level of immunity merely prevents legal action for a limited period of time , proceedings becoming possible once the MP loses his / her immunity status .

The NORP Government emphasised that these provisions had strong historical roots in the national legal system , serving to guarantee the protection of MPs in their political activity , in particular their freedom to vote and state their views .

Articles DATE and CARDINAL of the NORP Constitution prohibit proceedings against a member of either ORG concerning the expression of opinion or votes cast . Save in the case of flagrant délit , no member of a ORG may be summoned before a court or arrested during a parliamentary session unless the ORG has given consent . This immunity , even against acts infringing the rights of citizens , is regarded in domestic law and practice as an essential guarantee for the functioning of the legislature and its absolute nature as essential to the efficacy of that guarantee . Private rights have to be regarded as ceding to the overriding public interest .

ORG drew attention to LAW , which confers upon members of the ORG and ORG an immunity from every category of legal proceedings .

They pointed out that the right to parliamentary immunity in the GPE is not absolute . LAW of both the ORG and ORG cover cases in which an MP abuses the protection afforded by LAW . The President in each ORG may admonish any member who violates LAW and then offer the member concerned a chance to retract the offending remark . If the member refuses to make a retraction , or persists in violating LAW , the President may forbid him or her from speaking further or from attending the rest of the sitting or further sittings DATE . Similar immunities and disciplinary procedures apply at the provincial and municipal level .

ORG submitted that parliamentary immunity is indispensable to the operation of democracy and that to give the judiciary authority over what MPs say in their deliberations would represent an unacceptable infringement of the separation of powers .

According to section CARDINAL(CARDINAL ) of the LAW ( DATE ) , an MP shall not be prevented from carrying out his or her duties as a representative . Section CARDINAL ) provides that an MP can not be charged in a court of law or be deprived of liberty owing to opinions expressed by the representative in ORG or owing to conduct in the consideration of a matter , unless ORG gives consent by a majority of CARDINAL of the votes cast . The provisions concerning parliamentary privilege and immunities have a long tradition in the work of ORG , dating back to DATE . The only restriction on the exercise of the freedom of expression of a representative is the requirement in section GPE ) that a representative conduct himself or herself with decorum and not act offensively towards another person . If a representative breaches this condition , the Speaker may issue a warning or prohibit the representative from continuing to talk . ORG may caution a representative who has repeatedly breached the order or suspend him or her for a maximum of DATE .

A waiver of immunity may be requested by any person having the right to prosecute or to request prosecution . The Speaker examines whether the party has such a right and whether the intended prosecution concerns the MP 's official actions . ORG decides on such a request in ordinary session and the decisive question is whether the intended prosecution is of such a nature that there is a public or private interest to refer the matter to a court of law . In most cases , ORG has deemed such requests manifestly ill - founded and rejected them . In no case based on alleged damage to another person 's reputation or allegedly incorrect information given by an MP has a prosecution been authorised .

ORG considered that freedom of speech and the general freedom to act were essential for the performance of the duties of an MP .

The provisions in the NORP system which protect the representatives of the people in the performance of their duties date back to DATE , deriving from respect for the expression of the will of the people and the necessity in a democratic State for elected representatives to exercise their mandate freely without fear of legal action or interference from either the executive or the judiciary . The immunity bestowed is absolute in that it covers all acts carried out by MPs in the exercise of their functions regarding criminal and civil liability and permanent since it continues after expiry of their mandates . The immunity is not concerned with the private interests of the MP but with the function that he or she exercises . Thus , it can not be waived by an individual MP .

However , the immunity conferred is strictly interpreted and does not extend to acts outside the exercise of the ORG 's mandate , including speech in a private capacity within the ORG or statements in press articles even where these merely repeat statements made during an ORG debate . Parliamentary immunity carries with it a requirement of discretion ( devoir de réserve ) and unacceptable forms of expression may be subject to internal admonition .

ORG submitted that parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen , but as a fundamental liberty . They argued that a cursory consideration of the history of the principle , its widespread domestic and international constitutional entrenchment and the case - law of the ORG all suggest that parliamentary immunity is protected by the ORG . They supported this argument by reference to the preamble to the LAW .

ORG pointed to , inter alia , Articles CARDINAL and CARDINAL of LAW , which provide :

“ [ CARDINAL ] ORG shall make its own rules and standing orders , with power to attach penalties for their infringement , and shall have power to ensure freedom of debate ...

[ CARDINAL ] The Members of each ORG of the ORG [ ORG ] ... shall not , in respect of any utterance in either ORG , be amenable to any court or any authority other than the ORG itself . ”

Article CARDINAL.CARDINAL.CARDINAL of the LAW expressly recognises , and imposes upon the ORG , an obligation to defend and vindicate the citizen 's right to his or her good name . However , ORG indicated that there is no absolute right to reputation or protection from defamatory utterances under NORP law .

They drew attention also to the privileges and immunities enjoyed by representatives to ORG of ORG and members of ORG ( see paragraphs CARDINAL above ) . They submitted that it was difficult to see how such immunities could be consistent with the LAW if the conferring by individual GPE of similar immunities in respect of their own Parliaments itself violated the LAW .

ORG argued that the importance of the legitimate objectives pursued by parliamentary immunity was difficult to overstate and that it was for the national authorities to seek to balance the right of individual citizens to a good name with the right of free parliamentary expression . In reviewing the proportionality of the balance struck , they said that the ORG must have regard to the fact that GPE were in principle better placed than an international court to evaluate local needs and conditions .

ORG pointed out that parliamentary privilege is recognised by a large number of democratic countries across LOC and the rest of the world , including GPE , together with international bodies such as ORG and ORG . They submitted that such a privilege is a fundamental aspect of the separation of powers and the rule of law , both of which are political traditions upon which ORG were founded .

They stated that , notwithstanding a recent revision in GPE of the rules of parliamentary privileges and immunities , the protection of free speech in ORG against interference by the courts has never been questioned there and continues to be considered essential to parliamentary government . In the event of any dispute between ORG and the judiciary as to the application of a privilege , it is a “ neutral ” authority , in the form of ORG , which has the final decision . That court is made up of CARDINAL judges , CARDINAL of whom are appointed by ORG , CARDINAL by the supreme courts and CARDINAL by the President of the Republic .

ORG submitted that parliamentary privilege pursues its legitimate aim in a proportionate manner , particularly since its scope is limited to parliamentary activity . They argued that MPs would not be able to speak their mind freely in ORG in the absence of an absolute immunity .

There is no general provision granting members of ORG ( ORG ) immunity from judicial processes . However , LAW confers immunity in CARDINAL limited situations . Members can not be arrested on the way to or from ORG ( unless apprehended in “ public crimes ” ) and can not be called to account outside the meetings of ORG for opinions expressed there . This immunity comprises both criminal and civil liability , and extends even to speech where it is alleged that the member has intentionally expressed untruths or where the member has expressed himself or herself on a subject unconnected with the issue under debate . An individual member can not waive the immunity . The absolute nature of the immunity is regarded as necessary to prevent undermining the general purpose of the provision , which is to guarantee the unfettered exchange of information and ideas in ORG , being considered indispensable in the NORP democratic system .

However , a member may be held accountable within ORG , improper or insulting behaviour being prohibited and subject to the potential sanction of a warning from the President or exclusion by ORG from the right to speak or participate in the proceedings for the rest of DATE .


The applicant is a NORP national , born in DATE and living in LOC , GPE . Until DATE , he was serving a prison term in GPE . He was placed under guardianship by ORG ( ORG ) in DATE and his health requires permanent medical control . Before the ORG , he is represented by Mr R. Giebenrath , a lawyer practising in GPE and GPE . The respondent Government are represented by their Agent , Mr PERSON , from ORG .

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

On DATE the Sokolov ORG ( okresní soud ) ( “ the ORG ” ) convicted the applicant of assault on a public officer and sentenced him conditionally to a DATE ’s imprisonment . The applicant was further prohibited from driving motor vehicles for DATE . ORG established that on DATE the applicant had driven his car at a policeman who had attempted to stop him after he had committed a road traffic offence . The policeman saved himself by jumping to CARDINAL side . The Sokolov District Attorney ( okresní státní zástupce ) appealed against the judgment .

On DATE ORG ( krajský soud ) ( “ the ORG ” ) modified the first instance judgment in that it imposed DATE prison sentence on the applicant . It also prohibited the applicant from driving motor vehicles for DATE . ORG noted that the applicant is a foreigner without a permanent or temporary residence in GPE . It therefore considered that it would be impossible to control the applicant ’s behaviour during a probationary period if a conditional prison sentence were imposed .

In its judgment ORG pointed out that ORG had acted erroneously in that it had held the main hearing on DATE in the applicant ’s absence without duly notifying him . It considered , however , that the evidence available permitted a decision in the case without taking into account the evidence heard at the main hearing before ORG . ORG therefore held that these shortcomings did not affect the decision on the merits of the case . It appears that the applicant did not attend the hearing before the appellate court and that he was represented by a lawyer appointed ex officio .

On DATE , the judgment of ORG became enforceable . According to the Government , it was served on the applicant on DATE .

On DATE ORG ordered the applicant to reimburse the fees of the lawyer who had been appointed to represent him . On DATE ORG dismissed the applicant ’s complaint about that decision . On DATE a clerk of ORG delivered a decision rectifying the sum the applicant actually had to pay .

In the meantime , on DATE , the applicant had been arrested by the NORP police . He was placed in the NORP Slavkov prison where he started serving his prison sentence . On DATE he was transferred to the PERSON nad Ohří prison .

On DATE the applicant complained to the director of the PERSON nad ORG prison that he had some problems with his glasses and that the water had not been running for an hour .

In CARDINAL letters dated DATE , respectively , the applicant complained to ORG ( GPE soud ) in summary terms about the criminal proceedings leading to his conviction and the enforcement of the sentence .

On DATE the applicant sent a letter to several institutions and officials , including ORG , the Attorney General ( PERSON státní zástupce ) and the director of ORG prison , in which he complained that the NORP authorities had failed to react to his written submissions and that he had not been provided with adequate medical care in prison . He also made a request for a desk and a typewriter .

On DATE the applicant complained to the prison director that he was no longer allowed to prepare his application in the prison dining room . He explained that he could not concentrate on such work in the cell where he was detained together with CARDINAL or QUANTITY other people .

On DATE he complained in writing to the prison director that he was not allowed to use a typewriter or make copies of documents . He also alleged that he was not provided with adequate medical care .

In DATE the applicant was taken to a hospital in GPE for an examination of his mental health .

On DATE the Vice - President of ORG warned the applicant that his petitions to ORG did not satisfy the formal requirements for lodging a constitutional appeal . He informed the applicant that an appellant must be legally represented before ORG , must indicate his name , specify the subject of his constitutional appeal , sign the appeal and date it . He also informed the applicant about the DATE time - limit for lodging a constitutional appeal .

On DATE ORG ( PERSON spravedlnosti ) informed the applicant that his CARDINAL requests for the introduction of a complaint for a breach of law ( podnět k podání stížnosti pro porušení zákona ) , on DATE and CARDINAL DATE , were rejected as having no basis .

According to the Government , on DATE , after a discussion between the applicant and the prison director , the latter held that the applicant would be provided with necessary aid for his correspondence and , in particular , that his correspondence would be sent without delay and given to him immediately upon its arrival at the prison .

By letter of DATE , ORG ( Česká advokátní komora ) acknowledged receipt of the applicant ’s letter of DATE which , however , they had found to be unclear . He was therefore invited to specify his claims . A list of NORP speaking lawyers was joined to the letter .

By letter of DATE the applicant urged the ORG inter alia to decide on his constitutional appeals .

Article CARDINAL provides that the ratified and promulgated international treaties on human rights and fundamental freedoms , by which GPE is bound , shall be applicable as directly binding regulations having priority over the law .

According to LAW , fundamental human rights and freedoms are guaranteed to everybody irrespective of sex , race , colour of skin , language , faith , religion , political or other conviction , ethnic or social origin , membership of a national or ethnic minority , property , birth , or other status .

According to LAW , personal liberty is guaranteed . Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law .

LAW and CARDINAL provides inter alia that everybody is entitled to protection of his / her human dignity or personal integrity , and against unauthorised interference with private or family life .

According to LAW , nobody may violate the confidentiality of correspondence or other papers and records , whether privately kept or sent by post or in another manner , except in cases and in a manner specified by law .

DATE guarantees inter alia to everybody the right to the protection of his /her health .

Article CARDINAL provides that everybody can claim his / her rights in a prescribed manner before an independent and impartial tribunal or , in certain cases , before another organ .

According to LAW , everybody is entitled to a fair and public hearing within a reasonable time , in his / her presence , and to comment upon all the evidence submitted .

Section CARDINAL(CARDINAL)(a ) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty ( LAW ) by a legitimate decision taken in proceedings to which he / she was a party , and being a measure or interference by ‘ a public authority’ . According to paragraph CARDINAL , a constitutional appeal shall be submitted within DATE . If the law affords a remedy for the protection of rights , this period starts to run on DATE when the final effective decision becomes enforceable or , if no such remedy exists , on DATE on which the impugned events occurred .

According to section GPE ) , a constitutional appeal is inadmissible if the applicant failed to exhaust all the procedural remedies available in law for the protection of his / her rights .

Section CARDINAL(CARDINAL ) provides that the applicant must be represented by an attorney , a commercial lawyer or a notary to the extent provided for in the relevant special law .

Section CARDINAL(CARDINAL ) provides that a constitutional appeal shall be submitted in writing to ORG . The appeal shall include the following information : the person who is making the appeal , the matter to which it relates , and its object . The appeal must be signed and dated . Furthermore , it shall include a true description of the crucial facts , indicate the evidence which the applicant will introduce , and specify the claim . The appeal shall contain the other elements required by LAW . According to paragraph CARDINAL , the appeal shall be submitted in a sufficient number of copies so that ORG as well as each party to the appeal may have a copy .

According to section DATE , in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety , dismisses it in its entirety , or partially allows and partially dismisses it . If the court allows the constitutional appeal , it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated , and what act by a public authority perpetrated the violation . If it allows the constitutional appeal of a natural person , the court shall annul the contested decision of the public authority , or , if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision , the court shall order the authority to discontinue the violation and order it , to the extent possible , to restore the situation to that which existed prior to the violation .

According to section CARDINAL(CARDINAL)(c ) and ( d ) , a punishment becomes time - barred after the expiration of a period of DATE if it was a prison sentence exceeding DATE , and after DATE period in respect of other sanctions .

Section PERSON ) provides inter alia that the period of prescription begins on the date on which the judgment becomes enforceable . This period does not include any time when the sentenced person was abroad or was serving another prison sentence .

Code of Criminal Procedure ( Act no . CARDINAL/CARDINAL , as amended )

Section CARDINAL ) allows a trial to be held in the absence of the accused if the court considers that the case can be decided and the purpose of the criminal proceedings achieved in the accused ’s absence , provided that the formal indictment was duly served , the accused was properly summoned to attend the trial and was heard as to the facts constituting the subject of the indictment by a competent authority , was officially informed of the charges ( section CARDINAL ) and of the possibility to study the criminal file and make any suggestions regarding the completion of the investigation ( section CARDINAL ) ) .

According to section CARDINAL(CARDINAL ) , an appeal shall be lodged with an appellate court within DATE of the accused receiving the judgment against which appeal is made .

According to section CARDINAL , all prisoners have the same rights in the same circumstances within the scope of this LAW .

Section CARDINAL(CARDINAL ) provides that a prisoner has the right to medical care in accordance with a special law on the subject , subject to the limitations associated with the aim of the punishment .

Section CARDINAL ) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce those rights and interests protected by law . Such complaints and requests must be made without delay .

According to section DATE , the medical expenses of an uninsured prisoner are to be met by the prison service .

According to section CARDINAL(CARDINAL ) , a prisoner serves his / her prison sentence on the basis of a legitimate and enforceable court decision and pursuant to an order for the enforcement of that sentence .

Section CARDINAL(CARDINAL ) provides that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered , on the NORP and world level , to be part of the process of gathering and examining information concerning violations of human rights .

Section CARDINAL(CARDINAL ) provides that everyone has the right to legal representation . Those who can not find legal representation may ask ORG to appoint an attorney .

According to section CARDINAL , ORG may decide that the remuneration of the lawyer ’s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his / her social and financial situation justifies such a decision .