Violation of Art. 9;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

NORP In DATE ORG was amended to require the registration with ORG of non - profit organisations which had religious or related activities . CARDINAL requests for registration were submitted , but only CARDINAL organisations were registered . Those turned down were primarily NORP groups .

Denial of legal status made it impossible for those organisations to hire public lecture halls or sign contracts in the name of the organisation . The unregistered organisations were unable to open bank accounts or publish journals or newspapers in the name of the organisation and were denied certain tax advantages .

Among the organisations whose registration was turned down was “ Word of Life ” , a ORG group that had become active in GPE in DATE .

As a result of the authorities ' refusal to register Word of Life , the religious organisation began clandestine activities . Meetings were periodically thwarted by the police followed by media propaganda against the organisation and its members .

On DATE , acting on an order from the GPE 's ORG , the police closed a hall used by ORG in GPE and prevented members from using it .

On DATE a NORP citizen was expelled from GPE because of his participation in a Word of Life course ( see PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ) .

On DATE a force of around CARDINAL policemen prevented members of ORG from attending a meeting at a hall , because it had purportedly been cancelled .

On DATE the police raided private homes in the town of PERSON and a conference hall in FAC . They confiscated religious literature , audio tapes and video cassettes , which they displayed at a press conference DATE . No charges were subsequently brought against any members of ORG .

On DATE and DATE the police raided CARDINAL gatherings of Word of Life followers in private homes . Religious literature was confiscated and the hosts were required to declare in writing that they would no longer organise religious gatherings in their homes .

NORP Throughout DATE and DATE the local Ruse media reported regularly on “ unlawful ” gatherings and religious activities by Word of Life followers . The media campaign intensified , with the national press joining in , during DATE and DATE . Press coverage was focused on FAC and ORG по речно корабостроене и корабоплаване – “ the School ” ) in ORG because several of the non - academic staff were allegedly followers of Word of Life . The media also waged a personal campaign against some of those individuals by naming and condemning them as followers of the religious organisation . It called for their dismissal and named the applicant as one of the individuals whose employment should be terminated ( see , for example , paragraph CARDINAL below ) .

As a direct result , ORG and ORG initiated inquiries into the religious activities of the ORG 's staff members .

On DATE ORG , in summarising the findings of ORG , found that there were insufficient grounds for opening a preliminary investigation . At the same time it stated that , inter alia , the activities at the School were “ not free of criminal culpability ” , and that they were in contravention of LAW and “ probably ” the relevant education Acts and regulations . Moreover , the allegedly “ unlawful ” religious activities were considered to have been carried out with the tacit approval of its principal .

Soon thereafter , the Regional Governor ( областният управител ) and a local member of parliament ( “ the MP ” ) called for radical measures to be taken to curb the alleged religious activities at the ORG and to dismiss the principal . They made public threats that , if such measures were not taken , they would petition ORG , ORG ( “ the Ministry ” ) to dismiss the Chief Educational Inspector for ORG ( “ the Educational Inspector ” ) .

On DATE the principal of the School was dismissed by ORG . The dismissal order directly referred to the negative media coverage and the findings of ORG and accused her of tolerating the activities of ORG at the ORG to the detriment of its staff and pupils . It also suggested that the principal should have dismissed those members of staff who were Word of Life followers . It is unclear whether the principal appealed against her dismissal .

A new principal was appointed soon thereafter .

In a broadcast on the Hristo Botev radio station , aired on DATE , the MP stressed that there were still members of ORG working in the ORG , such as the swimming pool manager ( the post occupied by the applicant ) , and inferred from this that the ORG had not conclusively resolved the matter with the dismissal of the former principal .

The applicant was a mechanical engineer and had a second university degree in pedagogical sciences . She had been involved in the religious activities of ORG since DATE .

On DATE the applicant was appointed by the School to the post of “ mechanic ” at its swimming pool on a temporary employment contract until DATE .

On an unspecified date , the ORG approved a new roster of posts ( щатно разписание ) for the ORG effective as of DATE , which provided for the post of “ swimming pool manager ” with a requirement for the holder of the post to have completed a course of secondary education . By a further amendment of CARDINAL DATE the holder of the post was required to have a higher - education qualification .

On DATE the applicant was promoted to the post of “ swimming pool manager ” and concluded a temporary employment contract with a term up to CARDINAL DATE .

On DATE the applicant 's temporary employment contract was extended until DATE .

On DATE the applicant concluded an employment contract of indefinite duration , which provided for her appointment to the post of “ swimming pool manager ” as of DATE . Her job description indicated that her responsibilities included , inter alia , managing and supervising the staff of the swimming pool , organising their work schedules , monitoring the regular accounting of the proceeds from the swimming pool and organising the swimming lessons . The job description did not expressly refer to any education or professional qualification requirements for the post . The applicant 's basic salary was set at CARDINAL old NORP levs ( MONEY ( ORG ) ) with a PERCENT bonus for length of service .

On an unspecified date the ORG approved a new roster of posts for the ORG effective as of DATE . It provided for the post of “ swimming pool manager ” with a requirement that the holder of the post have a higher - education qualification .

On DATE the principal of the ORG was dismissed and a new one was appointed soon thereafter .

On DATE the applicant was summoned to a meeting with ORG and his deputy . Another member of staff , PERSON , was also summoned to the meeting , which took place on the premises of the School . At the meeting , the inspectors asked for their resignations as a means of easing public tensions . The applicant contended , although this was disputed by the Government , that the inspectors had threatened them that if they did not resign of their own accord or did not renounce their faith , they would be dismissed on disciplinary grounds . The inspectors claimed that irrespective of their work performance they “ could instruct the [ new ] principal ” to dismiss them . PERSON denied being a member of ORG , while the applicant did not and also refused to resign . No assessment or mention was made during the meeting as to whether the applicant was performing her job well and whether she met the requirements for holding her post .

On DATE the applicant informed the new principal of the School in writing of her meeting of DATE with ORG and his deputy . No action was taken in response .

Thereafter , the new principal alienated the applicant – her office phone was removed , the locks to the swimming pool were changed without her being provided with a set of keys and the supervision of the renovation of the swimming pool was entrusted to a subordinate even though it should allegedly have been her responsibility . The new principal also made enquiries as to the applicant 's work performance .

On DATE the human resources department of the ORG prepared a list of CARDINAL employees allegedly without job descriptions . The applicant 's name and post were among them .

On DATE PERSON radio aired the interview with the MP in which he implied that the applicant 's post was CARDINAL of those still being occupied by a member of ORG ( see paragraph CARDINAL above ) .

By an order of CARDINAL DATE the applicant was dismissed , with immediate effect , on the grounds of not meeting the education and professional qualification requirements for the post of “ swimming pool manager ” ( LAW ( CARDINAL ) of LAW ) . When she was served with the order , the applicant enquired as to which requirements she did not meet , but the new principal did not inform her .

On DATE the applicant initiated proceedings before ORG challenging the lawfulness of the dismissal . She also sought reinstatement in her previous post and compensation for loss of income .

The applicant maintained that her dismissal was directly related to her religious beliefs and her refusal to resign of her own accord . Such a reason for terminating her employment contract , she argued , was a violation of LAW of LAW and LAW , which prohibited religious discrimination .

During the trial it was established that in DATE there had been a further amendment to the ORG 's roster of posts , which ORG had approved in a letter of DATE , but with effect from DATE . The amended roster of posts no longer envisaged the post of “ swimming pool manager ” , but provided for the post of “ sports complex organiser ” . On an unspecified date a job description had also been prepared for the new post which set out the requirements for the holder of the post as follows : “ university degree in sports , university degree in economics , as an exception – secondary education with specialisation in the relevant sport , qualified lifeguard , certified swimming instructor . ”

NORP The applicant argued before ORG that the changes to the ORG 's roster of posts should have taken place in accordance with standard practices and should not have been arbitrary . She claimed that the standard practice was to make changes to the roster of posts before the beginning of DATE . The applicant also claimed that the changes were arbitrary because there had not been any objective necessity , stemming from the work being performed , to change the requirements for the post .

A hearing was held on DATE at which the respondent party presented the new job description for the post of “ sports complex organiser ” .

At a hearing on DATE several witnesses gave evidence . ORG testified that the standard practice was to make changes to the roster of posts before DATE unless an urgent need , usually of a financial nature , required otherwise . He confirmed that he had met with the applicant in DATE in connection with the findings of ORG and that he had invited her to resign in view of the mounting discontent and public opinion . He stated that he had not enquired as to the activities of ORG at the ORG and that he was not familiar with the applicant 's work performance .

PERSON also testified and informed the court that the new principal had threatened her with dismissal if she talked about her work at the School . She testified as to the meeting of DATE with ORG and stated that , faced with the claim of being a follower of Word of Life , she had denied it . She stated that she had broken down and cried during the meeting because she had CARDINAL children to support and did not want to be left without a job . PERSON also informed the court that , as far as she was aware , the applicant had been a good and diligent employee , who had maintained good relations with the other members of staff .

A teacher from the ORG also testified at the hearing . He informed the court that since its construction in DATE the swimming pool had always had a manager , but that there had never been a requirement of a university degree in sports for the post . The teacher also testified as to the content of the radio broadcast of DATE , in which the applicant had been singled out for dismissal by the MP .

On DATE the applicant filed her written submissions with ORG , contending that the evidence in the case supported her claim . She maintained that the ORG 's roster of posts had been changed in the middle of DATE with the sole aim of introducing such requirements for her post as to allow her dismissal on those grounds .

On CARDINAL DATE ORG dismissed the applicant 's claims . In its judgment the court noted that the burden of proof as to whether the dismissal had been lawful or not lay with the School . It found , inter alia , that the School had complied with the procedure for changing the roster of posts and that the new job description for the post was in conformity with the standard job descriptions for such posts as approved by ORG . In addition , the court found that with the changes to the requirements for the post the ORG had envisaged the possibility that the person appointed to the job would not only manage and organise the activities of the swimming pool but could also act as a lifeguard or swimming instructor , a factor which the court deemed to be of “ vital importance ” . Based on these considerations , the court found that “ there really had been preconditions [ which entailed ] changing the requirements for the post ” and that the dismissal was therefore lawful . Separately , ORG found that the applicant 's claims that her dismissal had been motivated by her religious beliefs were not supported by the evidence in the case , that in fact the applicant had had very good relations with the other members of staff and that there were no complaints as to her work performance . The court also reasoned that the applicant 's assertions in this respect were refuted by the fact that PERSON was still employed by the ORG .

On DATE the applicant appealed against the judgment of ORG . She claimed , inter alia , that its findings were not based on the evidence established in the case and were therefore unfounded . She claimed that ORG had failed to make a proper assessment of key evidence , such as the testimonies of ORG and PERSON

The applicant also questioned the grounds of the first - instance court for dismissing her claim and contended that they were frivolous and at odds with the substance of her complaint alleging religious discrimination . Firstly , she had never claimed that her personal relations with her colleagues had suffered as a result of her religious beliefs . Secondly , she submitted that the first - instance court 's reasoning that there had been no discrimination against her , considering that PERSON was still employed by the ORG , was incorrect as there were various possible reasons for PERSON continued employment , such as the fact that the media had not singled her out for dismissal .

The applicant also claimed that ORG had never analysed in substance her complaint alleging religious discrimination , but had dealt with the matter purely as an issue of unfair dismissal .

Finally , she maintained that the facts of the case clearly showed that following her refusal to resign on DATE the ORG had simply tried to find a legal ground for dismissing her and that the chosen method was to change the requirements for the post she occupied so that she would become ineligible to hold it .

On DATE the former principal of the ORG filed submissions with ORG , attesting to a conversation she had had in DATE with ORG . At the meeting he had identified CARDINAL employees in respect of whom there had been “ information that they were members of a sect ” and whose employment he had insisted be terminated . At the time , the former principal had suggested that those employees resign of their own accord , but they had refused and no further action had been taken against them . It is unclear whether the applicant was CARDINAL of those employees .

In a judgment of DATE ORG dismissed the applicant 's appeal . The court found , inter alia , that the ORG had both a need and the right to change the roster of posts and the requirements for the applicant 's post and to dismiss her because she did not meet those requirements . It also found that ORG had adequately addressed the applicant 's allegations of religious discrimination and found them to be “ totally and irrefutably ... irrelevant ” based on the fact that she had maintained good relations with her colleagues and had been a good employee . Any allegations of subjective reasons or discriminatory grounds for her dismissal were therefore considered unfounded .

On DATE the applicant filed a petition for review ( cassation appeal ) , claiming , inter alia , that the lower courts had failed to properly evaluate the evidence before them and had never addressed the substance of her complaint alleging religious discrimination . She maintained that they had failed to assess the circumstances surrounding her dismissal and especially the events leading up to it , which clearly demonstrated the real reason why this legal method had been used to terminate her employment .

A hearing was conducted on DATE , which the applicant and her counsel , though duly summoned , did not attend . They presented their submissions to the court in writing .

In a final judgment of CARDINAL DATE ORG dismissed the applicant 's appeal . The court found , inter alia , that the applicant 's arguments were unsubstantiated , and upheld the findings of the lower courts . It stressed that the ORG had the right to change the requirements for the post and that such changes were not subject to judicial review . In addition , it compared the duties and responsibilities of the posts of “ swimming pool manager ” and “ sports complex organiser ” and found them to be essentially the same . ORG also noted that the old job description had lacked any education or professional qualification requirements for the post , while the new one had included such requirements . It reasoned , therefore , that the employer had simply filled a gap that had previously existed in that respect .

NORP The court refused to address the remainder of the arguments of the applicant as it found them to be irrelevant to the proceedings and to the issue of the dismissal .

The relevant provisions of the DATE LAW read as follows :

“ ( CARDINAL ) ORG shall be free .

“ ( CARDINAL ) NORP The freedom of conscience , the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable . The ORG shall assist in the maintenance of tolerance and respect between the adherents of different denominations , and between believers and non - believers .

( CARDINAL ) NORP The freedom of conscience and religion shall not be exercised to the detriment of national security , public order , public health and morals , or of the rights and freedoms of others . ”

The relevant provisions of LAW DATE read as follows :

“ All citizens in GPE shall be afforded the freedom of conscience and religion . ”

“ No one shall be persecuted or restricted in his civil and political rights , nor be dismissed from the performance of duties entrusted to him by law , on account of belonging to CARDINAL or another religious denomination or for not associating with any CARDINAL religious denomination ... ”

LAW ( Article CARDINAL ) , LAW of DATE ( section CARDINAL ) and LAW ( LAW ) provide for protection against discrimination grounded on , inter alia , religious beliefs .

An amendment of LAW of DATE widened the scope of protection against discrimination in the workplace to include “ indirect discrimination ” , which was defined in item CARDINAL of § CARDINAL of LAW to LAW as follows :

“ ' Indirect ' [ refers to ] the discrimination whereby ostensibly legal solutions are used in exercising labour rights and duties , but they are applied , in the light of the criteria under LAW [ of LAW ] , in a manner which in reality and in fact places some workers and employees in [ a ] less favourable or privileged position compared to others . Discrimination [ does not exist where ] the differences or the preferences [ are ] based on the qualification requirements for performing a specific job , or where special protection is given to certain [ types of ] workers and employees ( juveniles , pregnant women and mothers of young children , disabled people , those with reduced working capacity and other similar groups ) , as established by normative acts . ”

The above definition was repealed on DATE with the entry into force of ORG , which provides a comprehensive framework for protection against discrimination . Section CARDINAL(CARDINAL ) of the LAW introduced the following new definition of “ indirect discrimination ” :

“ Indirect discrimination is placing a person on the basis of the criteria in LAW sex , race , nationality , ethnicity ... , religion and belief ... ] in a less favourable position in comparison to other persons by way of an ostensibly neutral provision , criterion or practice , unless the said provision , criterion or practice is objectively justified in view of a statutory aim and the means of attaining the said aim are appropriate and necessary . ”

An employer may terminate a contract of employment by giving notice in writing to an employee where he or she does not have the necessary education or vocational training for performing the work assigned ( Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ) .

In reviewing such terminations the domestic courts have as their established practice that for a dismissal to be lawful ( under LAW ( CARDINAL ) of LAW ) it is sufficient for the courts to establish that there were new requirements in terms of education or vocational training for performing the assigned work which the employee no longer met , without their being required to assess the necessity for introducing such requirements ( see , for example , решение ORG DATE от CARDINAL г. по гр. д. № CARDINAL от DATE г. , ORG г. о. ) .

Section CARDINAL of LAW ( DATE ) proclaims the system of education to be secular .

ORG against Racism and Intolerance ( “ ECRI ” ) , in its CARDINAL reports on GPE for the years CARDINAL–CARDINAL , found that during the period there had been a high degree of intolerance in the media towards minority religious groups , particularly new religions . It also found the authorities to be somewhat passive in the face of acts of intolerance , which were not sufficiently combated or punished .

ECRI also reported that there had been religious discrimination in the field of education and that there had been cases of dismissal in the public sector for religious beliefs .

Human Rights Watch and ORG , in their DATE reports for DATE , noted that violations of religious freedoms in GPE had significantly increased over the period , especially with regard to what had been referred to as “ non - traditional ” religious denominations . They observed that the authorities had sought to impose restrictions on thought and religion and to restrict religious diversity , for example by introducing a requirement that non - profit organisations which pursued religious or related activities or dispensed religious education must first obtain the approval of ORG before they registered as such .

DATE . The NGOs also reported that there had been cases of dismissal in the public sector for religious beliefs and mentioned specific instances involving followers of Word of Life .


The applicant , PERSON , is a NORP national , born in DATE and living in GPE . She is represented before the Court by Mr FAC ORG , a lawyer practising in GPE .

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

The applicant ’s partner , PERSON , was killed on DATE in PERSON during a fight between supporters of the GPE soccer club LOC and supporters of the GPE soccer club PERSON . Following an investigation by the regional police GPE – PERSON of the killing of PERSON , a number of suspects were arrested .

Shortly afterwards , the regional police GPE - Amstelland opened an investigation into whether and to what extent LOC supporters formed part of a criminal organisation specifically involved in ( the organisation of ) fights and/or street vandalism and violence . In this context , the GPE public prosecutor ( officier van justitie ) opened a preliminary judicial investigation ( gerechtelijk vooronderzoek ) against NN ( nomen nescio ; i.e. against a person or persons unknown ) .

In the course of this preliminary judicial investigation and upon the request of the public prosecutor , the investigating judge ( rechtercommissaris ) authorised the tapping of a telephone line , the number for which was registered in the applicant ’s name . It was tapped DATE and DATE . In addition , the investigating judge authorised that a print - out be obtained of all telephone communications having taken place on this line DATE and DATE . At no point did any suspicions arise that the applicant herself had been involved in any criminal activities .

The lawyer who was acting on the applicant ’s behalf in the criminal proceedings against the suspected perpetrators of the killing of PERSON , and who also acted as defence counsel in criminal proceedings against a soccer supporter called PERSON , learned of the existence of the tapping of the applicant ’s telephone , as it was mentioned in PERSON ’s case - file . With PERSON ’s permission , the lawyer informed the applicant of the tapping of her telephone .

In a letter of DATE , the applicant ’s lawyer put the following questions to the public prosecutor :

“ a. Is it correct that the above telephone number has been tapped under your responsibility ?

b. If so , during which period has this taken place ?

c. Can you tell me when you informed my client of this , i.e. that her telephone was tapped during a certain period ?

d. In case this has not taken place so far , when would you have intended to do so and , if so , mentioning what grounds ?

e. What were the reasons for the “ tapping ” and of what criminal offence was she suspected ?

f. Is she still suspected of having committed that criminal offence ?

g. Would you kindly provide me , on behalf of < the applicant > , with a copy of all conversations that were recorded and listened to , in particular all the formal records of interception ( processen – verbaal van opname ) . ”

In his reply of DATE , the public prosecutor informed the applicant ’s lawyer as follows :

“ In answer to a number of your questions I could refer you to the formal record that is already in your possession in your capacity as the lawyer of the suspect PERSON On page CARDINAL of that record it is set out that and why the telephone of your client < the applicant > has been tapped . I will nevertheless reply to your questions point by point .

a. Yes .

b. From DATE to DATE .

c. I have not informed her of this .

d. I did not have the intention to inform her of this , since the tapping took place in the context of a preliminary judicial investigation against NN .

e. Your client was the partner of PERSON , who was killed during the clash between ORG and PERSON supporters in PERSON and who was formerly a barkeeper in the café U. , that was owned by your client and where , according to the information of ORG ( Criminele Inlichtingen ORG ; “ ORG ” ) , the hard core group of ORG supporters gathered . On this ground it was considered plausible that as yet unknown members of the hard core group , who were involved in acts of violence , could have contacts via the telephone number at issue . Your client was not suspected of a criminal offence in this connection .

f. See the last sentence under e.

g. No . The tapping has – as said – not taken place in the context of criminal proceedings against your client . A number of intercepted telephone conversations have been added to the note requesting authorisation to conduct a house search in connection with one of the suspects . In consultation with the investigating judge , it has been decided to grant you access to those conversations . ”

In his letter of DATE to the public prosecutor , the applicant ’s lawyer pointed out , inter alia , that the applicant had sold café U. DATE and that it would have been understandable had the café ’s telephone been tapped , but the fact that the applicant ’s private telephone line had been tapped was incomprehensible . The lawyer requested the information which had led to the telephone tapping , and a copy of the memoranda and other evidentiary items indicating that the applicant ’s telephone line would be used by members of the hard core group , and that these persons maintained contacts via this telephone .

In his reply of DATE , the public prosecutor stated inter alia :

“ ... My answer is possibly understandable ... when you see the situation as a whole and not only for a part thereof .

Let me , in spite of this , formulate it differently : your client was the owner of a café where the group of ORG hard core supporters met regularly . The suspicion that members of this hard core group would maintain contacts via the private telephone line of your client is not so incomprehensible when account is taken of the fact that your client ’s partner , PERSON , apparently belonged to that group since he went along to the planned violent clash between the hard core of ORG supporters and the hard core of PERSON supporters , during which clash he was killed .

In any event , the investigating judge considered this sufficient to issue an authorisation for tapping the telephone number concerned .

Since your client is not a suspect in this case , I will not add the ‘ memoranda and other evidentiary ORG requested by you . ”

On DATE , the applicant ’s lawyer transmitted a copy of the letter of DATE to the investigating judge , requesting a copy of the documents he had asked for in his letter of CARDINAL DATE . Despite a reminder sent on DATE , it remained unanswered .

Until DATE , the rules about the interception of communications made through public telecommunication networks or services were set out in Articles CARDINALf - h of LAW ( PERSON ; the “ ORG ” ) . Further rules on the practical exercise of the power to intercept communications were set out in LAW ( PERSON ) of DATE , a copy of which could be obtained by any interested person . The text of these Guidelines had further been published in , inter alia , ORG ( Nederlands Tijdschrift voor de Mensenrechten ) of DATE . These Guidelines , which did not have the formal character of law , had been issued as a model letter from the senior public prosecutors to the police .

The above rules initially only covered communications by telephone . As from DATE , when ORG ( Wet op de Computercriminaliteit ) entered into force , they also covered communications by fax and e - mail . On DATE , when the Act of CARDINAL DATE on amendments of the ORG in relation to special methods of criminal investigation entered into force , the provisions of LAW of the ORG were replaced by ORG CARDINAL m and ORG .

Pursuant to LAW ORG , as in force at the material time , the tapping of communications can only be effected in regard to offences for which detention on remand ( voorlopige hechtenis ) may be imposed , i.e. offences of a certain gravity carrying a punishment of imprisonment of DATE or more ( LAW ORG ) . The tapping can only concern communications in which a suspect is likely to participate , and it can only be ordered where the investigation urgently requires it . It must be authorised by the investigating judge . Furthermore , a record ( proces - verbaal ) of the tapping must be prepared within TIME .

Under LAW ORG , as in force at the relevant time , records without importance for the investigation must be destroyed as soon as possible by order of the investigating judge . As to the destruction of information obtained via the interception of telephone conversations , the standard practice in fact differed from the Guidelines . On the basis of , inter alia , the ORG ’s findings in the cases of ORG and PERSON v. GPE ( judgments of DATE , Series A no . CARDINAL-A&B ) as regards the possibility of inspection by the judge and by the defence , the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case . Anyone requesting access to such material was required to give reasons for such a request .

Where no suspect can be identified immediately and in order to obtain a tapping authorisation from the investigating judge , a preliminary judicial investigation against a person or persons unknown ( “ NN ” ) may be opened . As soon as the name(s ) of the suspected perpetrator(s ) can be established , the preliminary judicial investigation is to be put in the name of the suspect(s ) concerned ( LAW ORG ) . By subsequently availing him or herself of the right to be granted access to the case - file ( LAW ORG ) , a suspect can become aware of the fact that communications have been tapped during the investigation .

Until DATE , the Code of Criminal Procedure itself contained no provision on the period during which tapping of telecommunications may be carried out . However , pursuant to the Guidelines on the Interception of Telephone Conversations , a period of not DATE was set . PERSON could also not exceed DATE . After DATE the responsible police officer was required to submit an interim report to the public prosecutor and the investigating judge . The provisions of ORG CARDINAL m and FAC , as in force as from DATE , incorporated these DATE rules .


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

The applicant lived with her husband , Mr PERSON ( born in DATE ) , in PERSON , PERSON . The applicant is a linguist by training , and currently looks after her CARDINAL children , born in DATE and DATE . In DATE her husband temporarily resided in GPE in GPE .

The applicant submitted that on DATE at TIME her husband had left his temporary home in GPE in his car ( GPE VAZ CARDINAL ) . According to his brother , Mr PERSON , he should have had MONEY with him , which he had borrowed from his relatives . He did not come back home that night .

In TIME DATE the applicant ’s husband called his brother , Mr PERSON , on his mobile phone and said that his car had broken down . He tried to say where he was , but the phone was cut off .

In TIME of CARDINAL DATE the ORG were informed that their son , Mr PERSON , was being detained at ORG of the ORG ( ORG ) . At TIME several of Mr PERSON ’s relatives , including his father and CARDINAL brothers , arrived at the village of GPE ( also called GPE ) DATE the administrative centre of the ORG district DATE and went to the ROVD building .

There the policemen told them that on DATE the traffic police stopped CARDINAL vehicles , a green GPE CARDINAL and a PERSON , for an inspection near the Kavkaz-CARDINAL crossing between GPE and GPE . The policemen heard noise coming from the boot of the GPE car . They opened it and found a man tied up ( according to the policemen this was PERSON PERSON ) who cried “ I am an PERSON ! They are trying to take me out of here ! ” . The NORP car then started to move towards GPE , but was stopped by the policemen . In its boot they found another man tied up .

NORP The policemen arrested the persons who were in both cars and took them and the CARDINAL bound men to the Sunzhenskiy ROVD at TIME

According to the policemen , Mr PERSON was questioned and explained that on DATE he had been apprehended near the ORG restaurant in GPE along with a man to whom he had been giving a lift in his car , and whose name he did not know . He said he had been apprehended by CARDINAL men , CARDINAL of them of NORP origin and CARDINAL of them of NORP origin , and subsequently taken to ORG ( ORG ) headquarters in ORG , the capital of ORG . There he had been beaten and tortured . At some point on DATE he had been forced to call his family to convince them not to start searching for him .

By TIME of CARDINAL DATE numerous relatives of Mr PERSON had gathered in front of the ORG . The policemen asked his relatives to bring food and agreed to take it to him . Later they offered to allow CARDINAL of Mr PERSON ’s brothers , Mr PERSON and Mr PERSON , to visit him inside the building . While the CARDINAL men were standing on the ground floor of the police station , they heard someone shouting “ No visits ! They should leave ! ” PERSON and PERSON were then escorted to the exit of the ROVD building .

At TIME on DATE the policemen came outside to where the relatives of Mr PERSON were waiting and told them that he and another detainee had been driven to GPE . Mr K - v , an officer of ORG , had accompanied the cars to the Kavkaz-CARDINAL roadblock . This was the last news the relatives had of Mr PERSON .

On DATE , in reply to the ORG ’s request of CARDINAL DATE for factual information relating to the detention and whereabouts of Mr PERSON , the Government first submitted that ORG was not aware of his alleged abduction or his whereabouts . He had not been detained in the ORG DATE . His relatives had not applied to the department of the interior with a complaint about Mr PERSON ’s abduction . Furthermore , according to the information submitted by ORG , on DATE the Prosecutor ’s Office of Ingushetia had opened a criminal case under LAW ) of LAW abduction committed by a group .

On DATE the Government submitted the following information received from ORG :

“ In TIME of CARDINAL DATE police officers stopped CARDINAL cars at the “ Volga-CARDINAL ” stationary road checkpoint , located on federal route “ GPE ” , near the administrative border of GPE . The CARDINAL men sitting in the CARDINAL cars refused to produce their documents . In this connection they were brought to the ORG [ ROVD ] , where CARDINAL of the above - mentioned CARDINAL men introduced themselves as officers of ORG ] in GPE and produced their documents . The highest ranking officer of the group , PERSON , gave the following explanation of what had happened . He said that on DATE in ORG they had apprehended CARDINAL men , PERSON and [ PERSON ] , who were wanted on suspicion of having committed grave crimes , and that they were taking them to GPE . Mr Beletskiy produced documents that showed the lawfulness and validity of Mr PERSON ’s and [ PERSON ’s ] arrest and detention . After that the above - mentioned officers ... and the CARDINAL detained persons left for GPE .

According to information provided by ORG of GPE , officers of the law - enforcement bodies of GPE had not apprehended PERSON and there was no information that the latter had been brought to the territory of GPE . According to ORG in GPE , Mr Beletskiy V.V. was not on the staff of that GPE . Moreover , the ORG did not have any information regarding PERSON apprehension and whereabouts .

On DATE ORG of GPE initiated a criminal case in respect of an offence defined by LAW ( a ) ( abduction by a group of persons after preliminary collusion ) in connection with Mr PERSON ’s and [ PERSON ’s ] disappearance .

At present PERSON PERSON ’s and [ PERSON ’s ] location is not established . PERSON allegations that her husband is being detained at the LOC military base have not proved to be true ” .

Immediately after DATE the members of Mr PERSON ’s family started to search for him . On numerous occasions , both in person and in writing , they applied to prosecutors at various levels , ORG , the ORG , administrative authorities and public figures . The applicant and other family members received conflicting information about the circumstances of Mr PERSON ’s apprehension and detention , and hardly any about his whereabouts after DATE .

On DATE , upon a request by Mr PERSON ’s relatives , the chairman of ORG “ XXI Vek ” asked ORG of the ORG and the Sunzhenskiy ROVD if Mr PERSON had been detained on DATE , and if so , where he was . On DATE the Sunzhenskiy ROVD replied that Mr PERSON had not been detained by them .

NORP However , on DATE the deputy prosecutor of LOC informed the PERSON that “ on CARDINAL Medov A.K. was detained by officers of ORG for GPE under the command of LOC ” On DATE the same prosecutor informed the applicant ’s family that on DATE he had “ requested the military prosecutor of ORG ( UGA ) to submit relevant information ” .

On DATE the acting prosecutor of ORG replied to a member of ORG , Mr PERSON , that an investigation was ongoing into the Medovs’ complaint about the detention and ill - treatment of Mr PERSON by ORG officers on DATE .

On DATE the deputy prosecutor of LOC again confirmed to the applicant ’s family that “ on CARDINAL PERSON was detained by officers of ORG for GPE under the command of LOC On DATE [ M. ] , the military prosecutor of the ORG , was requested to submit information relating to the grounds of the arrest . ”

On DATE the acting prosecutor of ORG replied to PERSON PERSON that , since PERSON had been detained by ORG officers from GPE , all complaints submitted by his family had been forwarded for investigation to the military prosecutor of the UGA .

On DATE the Chief of ORG GPE wrote to the applicant and stated that PERSON had not been arrested or detained by its officers and that they had no information about his whereabouts .

On DATE Mr PERSON ’s relatives sent CARDINAL letters to ORG , the Minister of ORG Ingushetia and LOC , in which they described the known circumstances of Mr PERSON ’s apprehension and requested that an investigation into the abduction be carried out and his whereabouts be established .

On DATE the Chairman of Memorial , PERSON , and a member of ORG with the President of GPE , PERSON , met in PERSON with PERSON , the prosecutor of LOC . The applicant submitted a transcript of the discussion signed by PERSON . According to that document , on DATE Mr M - v had been informed that at QUANTITY a group of armed persons had been stopped at the Kavkaz-CARDINAL roadblock while trying to take CARDINAL persons to GPE . The armed persons had produced documents to show they were ORG officers from GPE and insisted that they were acting lawfully . The prosecutor had demanded that they be taken to the ORG and personally went to the roadblock , but by that time they had agreed to go and had driven to the Sunzhenskiy ROVD . At the ROVD the detained persons had produced identity documents issued by ORG for GPE bearing the names LOC , Detective PERSON , Corporal PERSON and PERSON DATE . They had also produced documents authorising them to arrest Mr PERSON and PERSON , who had been found by the policemen in the boots of the cars . Mr M - v had called the local ORG office , which confirmed that the arrest had been legal . The prosecutor had had to order the release of the detained persons , who had departed for GPE through a back door , taking the CARDINAL men with them .

In DATE the applicant and Mr PERSON mother wrote several letters to ORG , ORG , ORG for GPE , and ORG , referring to the information obtained in DATE and asking for information about Mr PERSON ’s whereabouts and news of the investigation .

On DATE the NORP Human Rights Commissioner wrote to ORG and the Director of the ORG in respect of Mr PERSON ’s arrest and detention .

On DATE the deputy chief of ORG for GPE replied to the applicant . He denied that Mr PERSON had been arrested or detained by the ORG ’s officers and stated that they had no information on his whereabouts . The letter further stated that ORG , Detective PERSON , Corporal PERSON and PERSON DATE . were not members of the ORG ’s staff .

On DATE ORG replied to the NORP Human Rights Commissioner , stating that a criminal investigation into the abduction was pending , and that at the moment no law - enforcement authority possessed information about Mr PERSON ’s arrest and detention or whereabouts . The letter also stated that on DATE the CARDINAL armed men and their CARDINAL prisoners had been released from the ORG upon orders of the then acting Minister of ORG Ingushetia , PERSON ORG , who had been killed on DATE .

On DATE the ORG replied to the Human Rights Commissioner and stated that the service had no information about Mr PERSON ’s arrest and detention or whereabouts , and that the CARDINAL named servicemen were not members of ORG for GPE .

On DATE the applicant complained to ORG about the inactivity of the investigator in charge of the case concerning her husband ’s abduction .

On DATE the applicant applied in person to the investigator in charge of the case with a request to conduct certain investigative measures , including questioning of the officers who had been on duty at the roadblock on DATE and the officer who had escorted her husband and the persons who had detained him to the border between GPE and GPE . According to the applicant , during her visit in person the investigator had refused to accept the application or include it in the case file . She had then sent it by registered mail .

On DATE the applicant complained to ORG of GPE about the investigator ’s refusal to accept the application of DATE and to take the requested investigative measures .

On DATE ORG examined the complaint . At the hearing the investigator submitted that the applicant had applied to be provided with information on the progress of the investigation once and had received a written reply . He had not received any other applications from her . He contended that the investigative measures requested by the applicant had been taken ; however , he could not inform her of the results until the preliminary investigation was completed . The court dismissed the applicant ’s complaint and held , inter alia :

“ In accordance with [ LAW ] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation . Accordingly , [ the investigator ’s ] refusal to familiarise the victim with the materials of the case file was lawful . ”

The decision could be appealed against within DATE .

On DATE the applicant submitted an appeal together with an application to restore the time - limit for appeal as the decision had been served on her only on DATE .

On DATE the ORG refused the application to restore the time - limit for appeal on the ground that the applicant had been present at the hearing of DATE , where the decision had been read out .

On an unspecified date the decisions of DATE and DATE were quashed by ORG and the case remitted to ORG for a fresh examination . According to the Government , upon the fresh examination ORG dismissed the complaint . The decision was not appealed against .

On DATE , following an application lodged by the applicant , ORG of GPE declared Mr PERSON a missing person .

The Government submitted the following information concerning the progress of the investigation .

On DATE criminal investigation no . DATE was instituted into the abduction of Mr PERSON .

On DATE the investigator questioned as a witness Mr I. , deputy prosecutor of LOC . PERSON submitted that on DATE he had been on duty at ORG . At TIME he was informed by the head of the ORG that unknown persons who had tried to take Mr PERSON and PERSON through the checkpoint had been brought to the ROVD . They had presented themselves as ORG officers . PERSON had immediately informed Mr B. , another deputy prosecutor of LOC . PERSON had told him that the persons brought to the ROVD had with them all necessary documents . PERSON was questioned again on DATE .

On DATE , DATE and DATE the investigator also questioned relatives of Mr PERSON .

On DATE the applicant was granted the status of a victim in the criminal proceedings . She was questioned on CARDINAL DATE .

On DATE the investigator questioned PERSON , the head of the ORG . On DATE he questioned PERSON , an officer of ORG . On DATE the investigator questioned Bad . and PERSON . , the heads of ORG , and on DATE he questioned PERSON , an officer of ORG .

On DATE the investigator questioned as witnesses CARDINAL police officers of the special police unit of ORG .

On DATE the investigator questioned CARDINAL officers of the traffic police of ORG .

DATE . On DATE the prosecutor of military unit no . CARDINAL questioned the head of ORG of the ORG and on DATE his deputy .

On DATE the preliminary investigation was suspended on the ground that the person to be charged with the offence had not been identified .

On DATE the deputy prosecutor of the Sunzhenskiy District quashed the decision to suspend the investigation .

On DATE the investigation was resumed .

On CARDINAL DATE the preliminary investigation was suspended again on the ground that the person to be charged with the offence had not been identified .

On DATE the first deputy prosecutor of GPE quashed the decision to suspend the investigation and transmitted the case to ORG of LOC for additional investigation .

On DATE the investigator questioned as witnesses CARDINAL neighbours of Mr PERSON .

On DATE the investigator suspended the preliminary investigation again on the ground that the persons to be charged with the offence had not been identified .

On DATE the first deputy prosecutor of GPE quashed the decision to suspend the investigation .

According to the Government , in the course of the investigation requests for information were sent to ORG of GPE , prosecutor ’s offices and investigating authorities of other NORP regions , the military prosecutor of ORG , ORG for LOC , ORG , medical institutions , a mobile network operator , airline and railway ticket offices , civil registrars , and passport and visa services . The investigating authorities also checked the registers of unidentified dead bodies and temporary detention facilities . According to the information received , the persons who presented themselves as ORG officers during the documents check had never served in the ORG and the documents presented had never been issued to them by the ORG authorities . Neither ORG nor the ORG had conducted any operations in order to arrest PERSON and ORG of the ORG had neither instituted proceedings against PERSON and PERSON nor arrested them .

On DATE the investigation was suspended on the ground that the persons to be charged with the offence had not been identified . The applicant was notified accordingly .

On DATE the investigation was resumed . The applicant was notified of the resumption .

NORP Despite specific requests made by ORG on several occasions , the Government did not submit any documents from the file in criminal case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of the documents disclosing military information and the personal details of the witnesses , and without the right to make copies of the case file and transmit it to others .

On DATE the applicant submitted a letter to the ORG , in which she alleged that in DATE persons who claimed to belong to the ORG had offered her money via a relative of hers for the withdrawal of her application . She had also been personally contacted by a man claiming to be an officer of the ORG who had threatened her and offered money for the withdrawal of her application before the ORG .

After the application had been communicated to the Government , the applicant maintained the complaint concerning the events that had allegedly taken place in DATE . She made no new allegations .

The Government submitted that ORG agents had not hindered the applicant ’s right to petition ORG . Furthermore , the applicant had not applied to law - enforcement agencies in connection with the alleged threats and offers of money for the withdrawal of her application .

Article CARDINAL of the Code of Criminal Procedure provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court .

Article CARDINAL of the Code of Criminal Procedure stipulates that evidence from the preliminary investigation may not be disclosed . Part CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator , but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission


CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (No. 2)

Violation of Art. 10;No violation of Art. 13 and 14+10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicants in this case ( who are hereinafter together referred to as " S.T. " ) are ORG , the publisher of the GPE national DATE newspaper ORG , and Mr PERSON , its editor . They complain of interlocutory injunctions imposed by the NORP courts on the publication of details of the book Spycatcher and information obtained from its author , Mr PERSON .

ORG In litigation where the plaintiff seeks a permanent injunction against the defendant , the LANGUAGE courts have a discretion to grant the plaintiff an " interlocutory injunction " ( a temporary restriction pending the determination of the dispute at the substantive trial ) which is designed to protect his position in the interim . In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial .

The principles on which such injunctions will be granted - to which reference was made in the proceedings in the present case - were set out in ORG v. Ethicon Ltd([CARDINAL ] Appeal Cases CARDINAL ) and may be summarised as follows .

( a ) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration .

( b ) ORG the material before the court at that stage fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction , the court should consider , in the light of the particular circumstances of the case , whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought .

( c ) ORG If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial , no interlocutory injunction should normally be granted . If , on the other hand , damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff ’s undertaking if the defendant were to succeed at the trial , there would be no reason to refuse an interlocutory injunction on this ground .

( d ) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises .

( e ) ORG Where other factors appear evenly balanced , it is a counsel of prudence to take such measures as are calculated to preserve the status quo .

ORG Mr PERSON was employed by ORG as a senior member of ORG ( MICARDINAL ) from DATE , when he resigned . Subsequently , without any authority from his former employers , he wrote his memoirs , entitled GPE , and made arrangements for their publication in GPE , where he was then living . The book dealt with the operational organisation , methods and personnel of MICARDINAL and also included an account of alleged illegal activities by ORG . He asserted therein , inter alia , that MICARDINAL conducted unlawful activities calculated to undermine the DATE ORG , burgled and " bugged " the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad , and that Sir PERSON , who led MICARDINAL during the latter part of Mr PERSON ’s employment , was a NORP agent .

PERSON had previously sought , unsuccessfully , to persuade ORG to institute an independent inquiry into these allegations . In DATE such an inquiry was also sought by , amongst others , a number of prominent members of the DATE ORG , but in vain .

ORG Part of the material in Spycatcher had already been published in a number of books about ORG written by PERSON . Moreover , in DATE PERSON had given a lengthy interview to ORG ( an independent television company operating in GPE ) about the work of the service and the programme was shown again in DATE . Other books and another television programme on the workings and secrets of the service were produced at about the same time , but little Government action was taken against the authors or the media .

ORG In DATE the Attorney General of GPE and GPE ( " the Attorney General " ) instituted , on behalf of ORG , proceedings in ORG , GPE , to restrain publication of ORG and of any information therein derived from PERSON work for ORG . The claim was based not on official secrecy but on the ground that the disclosure of such information by PERSON would constitute a breach of , notably , his duty of confidentiality under the terms of his employment . On DATE he and his publishers , ORG , gave undertakings , by which they abided , not to publish pending the hearing of the Government ’s claim for an injunction .

Throughout the NORP proceedings the ORG objected to the book as such ; they declined to indicate which passages they objected to as being detrimental to national security .

ORG Whilst the NORP proceedings were still pending , the GPE national DATE newspaper ORG and the GPE national DATE newspaper ORG published , on DATE respectively , short articles on inside pages reporting on the forthcoming hearing in GPE and giving details of some of the contents of the manuscript of Spycatcher . These CARDINAL newspapers had for some time been conducting a campaign for an independent investigation into the workings of ORG . The details given included the following allegations of improper , criminal and unconstitutional conduct on the part of MICARDINAL officers :

( a ) ORG MICARDINAL " bugged " all diplomatic conferences at ORG in GPE throughout DATE and DATE ’s , as well as the GPE independence negotiations in DATE ;

( b ) ORG MICARDINAL " bugged " diplomats from GPE , GPE , GPE and GPE , as well as Mr GPE ’s hotel suite during his visit to GPE in the DATE ’s , and was guilty of routine burglary and " bugging " ( including the entering of NORP consulates abroad ) ;

( c ) ORG MICARDINAL plotted unsuccessfully to assassinate President PERSON of GPE at the time of the LOC crisis ;

( d ) ORG MICARDINAL plotted against PERSON during his premiership from DATE ;

( e ) ORG MICARDINAL ( contrary to its guidelines ) diverted its resources to investigate left - wing political groups in GPE .

The Observer and ORG articles , which were written by Mr PERSON and Mr PERSON and by Mr PERSON - PERSON respectively , were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material . However , much of the actual information in the articles had already been published elsewhere ( see paragraph CARDINAL above ) . The LANGUAGE courts subsequently inferred that , on the balance of probabilities , the PERSON sources must have come from the offices of the publishers of ORG or the solicitors acting for them and the author ( see the judgment of DATE of Mr Justice PERSON ; paragraph CARDINAL below ) .

ORG The Attorney General instituted proceedings for breach of confidence in ORG of ORG and GPE against ORG , the proprietors and publishers of the Observer , Mr PERSON , its editor , and PERSON and PERSON , and against ORG , the proprietors and publishers of The ORG , Mr PERSON , its editor , and Mr ORG .

The Attorney General sought permanent injunctions against the defendants ( who are hereinafter together referred to as " O.G. " ) , restraining them from making any publication of Spycatcher material . He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant . It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose .

ORG The evidential basis for the Attorney General ’s claim was CARDINAL affidavits sworn by Sir PERSON , Secretary to ORG , in the NORP proceedings on CARDINAL and DATE . He had stated therein , inter alia , that the publication of any narrative based on information available to PERSON as a member of ORG would cause unquantifiable damage , both to the service itself and to its officers and other persons identified , by reason of the disclosures involved . It would also undermine the confidence that friendly countries and other organisations and persons had in ORG and create a risk of other employees or former employees of that service seeking to publish similar information .

ORG On DATE ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions . On an application by PERSON and after an inter partes hearing on DATE , Mr Justice PERSON ( sitting in ORG ) decided that these injunctions should remain in force , but with various modifications . The defendants were given liberty to apply to vary or discharge the orders on giving CARDINAL hours’ notice .

ORG The reasons for Mr Justice PERSON ’s decision may be briefly summarised as follows .

( a ) ORG by PERSON of information acquired as a member of ORG would constitute a breach of his duty of confidentiality .

( b ) ORG wished to be free to publish further information deriving directly or indirectly from PERSON and disclosing alleged unlawful activity on the part of ORG , whether or not it had been previously published .

( c ) ORG Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute .

( d ) ORG In resolving , as in the present case , a conflict between the public interest in preventing and the public interest in allowing such disclosure , the court had to take into account all relevant considerations , including the facts that this was an interlocutory application and not the trial of the action , that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights . In such circumstances , the conflict should be resolved in favour of restraint , unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial : an example would be when the proposed publication related to unlawful acts , the disclosure of which was required in the public interest . This could be regarded either as an exception to the NORP ORG principles ( see paragraph CARDINAL above ) or their application in special circumstances where the public interest was invoked on both sides .

( e ) ORG The Attorney General ’s principal objection was not to the dissemination of allegations about ORG but to the fact that those allegations were made by CARDINAL of its former employees , it being that particular fact which PERSON wished to publish . There was credible evidence ( in the shape of Sir PERSON affidavits ; see paragraph CARDINAL above ) that the appearance of confidentiality was essential to the operation of ORG and that the efficient discharge of its duties would be impaired , with consequent danger to national security , if senior officers were known to be free to disclose what they had learned whilst employed by it . Although this evidence remained to be tested at the substantive trial , the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial . Bearing in mind , inter alia , that the alleged unlawful activities had occurred some time in the past , there was , moreover , no compelling interest requiring publication immediately rather than after the trial .

In the subsequent stages of the interlocutory proceedings , both ORG ( see paragraphs DATE below ) and all the members of ORG ( see paragraphs CARDINAL below ) considered that this initial grant of interim injunctions by Mr Justice PERSON was justified .

ORG On DATE ORG dismissed an appeal by PERSON and upheld the injunctions , with minor modifications . It referred to the NORP ORG principles ( see paragraph CARDINAL above ) and considered that Mr Justice PERSON had not misdirected himself or exercised his discretion on an erroneous basis . It refused leave to appeal to ORG . It also certified the case as fit for a speedy trial .

As amended by ORG , the injunctions ( " the PERSON injunctions " ) restrained PERSON , until the trial of the action or further order , from :

" CARDINAL . ORG disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by PERSON in his capacity as a member of ORG and which they know , or have reasonable grounds to believe , to have come or been obtained , whether directly or indirectly , from the said PERSON ;

ORG attributing in any disclosure or publication made by them to any person any information concerning ORG to the said PERSON whether by name or otherwise . "

The orders contained the following provisos :

" CARDINAL . ORG this Order shall not prohibit direct quotation of attributions to PERSON already made by Mr PERSON in published works , or in a television programme or programmes broadcast by ORG ;

ORG no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in ORG unless prohibited by the Judge there sitting or which , after the trial there in action no . CARDINAL of DATE , is not prohibited from publication ;

ORG no breach of this Order shall be constituted by a fair and accurate report of proceedings in ( a ) either ORG in the GPE whose publication is permitted by that ORG ; or ( b ) a court of the GPE sitting in public . "

ORG On DATE ORG granted leave to appeal against ORG decision . The appeal was subsequently withdrawn in the light of ORG decision of CARDINAL DATE ( see paragraphs DATE below ) .

ORG The trial of the Government ’s action in GPE ( see paragraph CARDINAL above ) took place in DATE . The proceedings were reported in detail in the media in GPE and elsewhere . In a judgment delivered on CARDINAL DATE Mr Justice PERSON rejected the Attorney General ’s claim against Mr PERSON and his publishers , holding that much of the information in GPE was no longer confidential and that publication of the remainder would not be detrimental to ORG or ORG . The undertakings not to publish were then discharged by order of the court .

The Attorney General lodged an appeal ; after a hearing in ORG in DATE , judgment was reserved . The defendants had given further undertakings not to publish whilst the appeal was pending .

ORG On DATE a major summary of certain of the allegations in Spycatcher , allegedly based on a copy of the manuscript , appeared in the GPE national DATE newspaper ORG . DATE reports of that summary were published in ORG and ORG .

On DATE the Attorney General applied to ORG of ORG for leave to move against the publishers and editors of these CARDINAL newspapers for contempt of court that is conduct intended to interfere with or prejudice the administration of justice . Leave was granted on DATE . In this application ( hereinafter referred to as " the Independent case " ) the Attorney General was not acting - as he was in the breach of confidence proceedings against O.G. - as the representative of the Government , but independently and in his capacity as " the guardian of the public interest in the due administration of justice " .

Reports similar to those of DATE appeared on DATE in GPE , in ORG and ORG , and on DATE in GPE , in ORG .

ORG On DATE O.G. applied for the discharge of the PERSON injunctions ( see paragraph CARDINAL above ) on the ground that there had been a significant change of circumstances since they were granted . They referred to what had transpired in the NORP proceedings and to the GPE newspaper reports of DATE .

The Vice - Chancellor , Sir PERSON , began to hear these applications on DATE but adjourned them pending the determination of a preliminary issue of law , raised in the Independent case ( see paragraph CARDINAL above ) , on which he thought their outcome to be largely dependent , namely " whether a publication made in the knowledge of an outstanding injunction against another party , and which if made by that other party would be in breach thereof , constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction " . On DATE , in response to the Vice - Chancellor ’s invitation , the Attorney General pursued the proceedings in the Independent case in ORG of ORG and the Vice - Chancellor ordered the trial of the preliminary issue .

ORG On DATE PERSON , which had purchased from Mr PERSON ’s NORP publishers the GPE publication rights to Spycatcher , announced its intention of publishing the book in the latter country .

ORG On DATE the Vice - Chancellor decided the preliminary issue of law in the Independent case . He held that the reports that had appeared on DATE ( see paragraph CARDINAL above ) could not , as a matter of law , amount to contempt of court because they were not in breach of the express terms of the PERSON injunctions and the CARDINAL newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined . The Attorney General appealed .

ORG On DATE O.G. , relying on the intended publication in GPE , applied to have the hearing of their application for discharge of the PERSON injunctions restored ( see paragraph CARDINAL above ) . The matter was , however , adjourned pending the outcome of the Attorney General ’s appeal in the Independent case , the hearing of which began on DATE .

ORG On DATE ORG , which had purchased the NORP newspaper serialisation rights from Mr PERSON ’s NORP publishers and obtained a copy of the manuscript from ORG in GPE , printed – in its later editions in order to avoid the risk of proceedings for an injunction - the first instalment of extracts from Spycatcher . It explained that this was timed to coincide with publication of the book in GPE , which was due to take place on DATE .

On DATE the Attorney General commenced proceedings against ORG for contempt of court , on the ground that the publication frustrated the purpose of the PERSON injunctions .

ORG On DATE ORG published FAC in GPE ; some copies had , in fact , been put on sale on DATE . It was an immediate best - seller . ORG , which had been advised that proceedings to restrain publication in GPE would not succeed , took no legal action to that end either in that country or in GPE , where the book also became a best - seller .

ORG A substantial number of copies of the book were then brought into GPE , notably by NORP citizens who had bought it whilst visiting GPE or who had purchased it by telephone or post from NORP bookshops . The telephone number and address of such bookshops willing to deliver the book to GPE were widely advertised in that country . No steps to prevent such imports were taken by ORG , which formed the view that although a ban was within their powers , it was likely to be ineffective . They did , however , take steps to prevent the book ’s being available at GPE booksellers or public libraries .

ORG On DATE ORG announced that it would reverse the judgment of the Vice - Chancellor in the Independent case ( see paragraph CARDINAL above ) . Its reasons , which were handed down on DATE , were basically as follows : the purpose of the PERSON injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against PERSON ; the conduct of ORG , The London Evening Standard and ORG could , as a matter of law , constitute a criminal contempt of court because publication of that material would destroy that confidentiality and , hence , the subject - matter of those actions and therefore interfere with the administration of justice . ORG remitted the case to ORG for it to determine whether the CARDINAL newspapers had acted with the specific intent of so interfering ( sections CARDINAL(CARDINAL ) and CARDINAL ) of ORG ) .

ORG refused the defendants leave to appeal to ORG and they did not seek leave to appeal from the ORG itself . Neither did they apply to ORG for modification of the PERSON injunctions . The result of ORG decision was that those injunctions were effectively binding on all the NORP media , including ORG .

S.T. made it clear that , unless restrained by law , they would publish the second instalment of the serialisation of Spycatcher on DATE . On DATE the Attorney General applied for an injunction to restrain them from publishing further extracts , maintaining that this would constitute a contempt of court by reason of the combined effect of the PERSON injunctions and the decision in the NORP case ( see paragraph CARDINAL above ) .

On DATE the Vice - Chancellor granted a temporary injunction restraining publication by ORG until DATE . It was agreed that on DATE he would consider the application by PERSON for discharge of the PERSON injunctions ( see paragraph CARDINAL above ) and that , since they effectively bound PERSON as well , the latter would have a right to be heard in support of that application . It was further agreed that he would also hear the Attorney General ’s claim for an injunction against ORG and that that claim would fail if the PERSON injunctions were discharged .

ORG Having heard argument from CARDINAL to CARDINAL DATE , the Vice - Chancellor gave judgment on the last - mentioned date , discharging the PERSON injunctions and dismissing the claim for an injunction against ORG

The Vice - Chancellor ’s reasons may be briefly summarised as follows .

( a ) ORG There had , notably in view of the publication in GPE ( see paragraphs CARDINAL above ) , been a radical change of circumstances , and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances .

( b ) ORG Having regard to the case - law and notwithstanding the changed circumstances , it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against PERSON at the substantive trial ; accordingly , the ordinary NORP ORG principles ( see paragraph CARDINAL above ) fell to be applied .

( c ) ORG Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers , it had to be determined where the balance of convenience lay ; the preservation of confidentiality should be favoured unless another public interest outweighed it .

( d ) ORG in favour of continuing the injunctions were : the proceedings were only interlocutory ; there was nothing new or urgent about Mr PERSON ’s allegations ; the injunctions would bind all the media , so that there would be no question of discrimination ; undertakings not to publish were still in force in GPE ; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality ; to continue the injunctions would discourage others from following Mr PERSON ’s example .

( e ) ORG in favour of discharging the injunctions were : publication in GPE had destroyed a large part of the purpose of the Attorney General ’s actions ; publications in the press , especially those concerning allegations of unlawful conduct in the public service , should not be restrained unless this was unavoidable ; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose .

( f ) ORG The matter was quite nicely weighted and in no sense obvious but , with hesitation , the balance fell in favour of discharging the injunctions .

The Attorney General immediately appealed against the Vice - Chancellor ’s decision ; pending the appeal the injunctions against PERSON , but not the injunction against ORG ( see paragraph CARDINAL above ) , were continued in force .

ORG In a judgment of CARDINAL DATE ORG held that :

( a ) ORG the Vice - Chancellor had erred in law in various respects , so that ORG could exercise its own discretion ;

( b ) ORG in the light of the NORP publication of Spycatcher , it was inappropriate to continue the PERSON injunctions in their original form ;

( c ) ORG it was , however , appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to PERSON on security matters , but to permit " a summary in very general terms " of his allegations .

The members of ORG considered that continuation of the injunctions would : serve to restore confidence in ORG by showing that memoirs could not be published without authority ( Sir PERSON , Master of the Rolls ) ; serve to protect the Attorney General ’s rights until the trial ( Lord Justice PERSON ) ; or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence ( Lord Justice PERSON ) .

ORG gave leave to all parties to appeal to ORG .

ORG After hearing argument from CARDINAL to CARDINAL DATE ( when neither side supported ORG compromise solution ) , ORG gave judgment on DATE , holding , by a majority of CARDINAL ( Lord PERSON of ORG , Lord Templeman and Lord PERSON ) to CARDINAL ( Lord Bridge of GPE - the immediate past Chairman of ORG - and Lord PERSON of GPE ) , that the PERSON injunctions should continue . In fact , they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on CARDINAL DATE ( see paragraph DATE below ) .

The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the NORP proceedings ( see paragraph CARDINAL above ) , since the injunctions would be circumvented if LANGUAGE newspapers were to reproduce passages from Spycatcher read out in open court . In the events that happened , this deletion had , according to the Government , no practical incidence on the reporting of the NORP proceedings .

ORG The members of ORG gave their written reasons on CARDINAL DATE ; they may be briefly summarised as follows .

( a ) Lord PERSON of ORG

( i ) The object of the Attorney General ’s actions against PERSON was the protection of an important public interest , namely the maintenance as far as possible of the secrecy of ORG ; as was recognised in Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , the right to freedom of expression was subject to certain exceptions , including the protection of national security .

( ii ) The injunctions in issue were only temporary , being designed to hold the ring until the trial , and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions .

( iii ) The view taken in the courts below , before the NORP publication , that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge .

( iv ) Publication in GPE had weakened that case , but it remained arguable ; it was not clear whether , as a matter of law , that publication had caused the newspapers’ duty of non - disclosure to lapse . Although the major part of the potential damage adverted to by Sir PERSON ( see paragraph CARDINAL above ) had already been done , the courts might still be able to take useful steps to reduce the risk of similar damage by other ORG employees in the future . This risk was so serious that the courts should do all they could to minimise it .

( v ) The only way to determine the Attorney General ’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross - examination .

( vi ) Immediate discharge of the injunctions would completely destroy the Attorney General ’s arguable case at the interlocutory stage , without his having had the opportunity of having it tried on appropriate evidence .

( vii ) Continuing the injunctions until the trial would , if the Attorney General ’s claims then failed , merely delay but not prevent the newspapers’ right to publish information which , moreover , related to events that had taken place DATE in the past .

( viii ) In the overall interests of justice , a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to CARDINAL which might result in permanent and irrevocable damage to the cause of the Attorney General .

( b ) Lord Templeman ( who agreed with the observations of Lords PERSON and PERSON )

( i ) The appeal involved a conflict between the right of the public to be protected by ORG and its right to be supplied with full information by the press . It therefore involved consideration of the LAW , the question being whether the interference constituted by the injunctions was , on DATE , necessary in a NORP society for one or more of the purposes listed in DATE . CARDINAL ( article CARDINAL ) .

( ii ) In terms of the LAW , the restraints were necessary in the interests of national security , for protecting the reputation or rights of others , for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary . The restraints would prevent harm to ORG , notably in the form of the mass circulation , both now and in the future , of accusations to which its members could not respond . To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the ORG .

( c ) Lord PERSON ( who agreed with the observations of Lord PERSON )

( i ) It was accepted by all members of ORG that : the Attorney General had an arguable case for a permanent injunction ; damages were a worthless remedy for the ORG which , if the PERSON injunctions were not continued , would lose forever the prospect of obtaining permanent injunctions at the trial ; continuation of the PERSON injunctions was not a " final locking - out " of the press which , if successful at the trial , would then be able to publish material that had no present urgency ; there was a real public interest , that required protection , concerned with the efficient functioning of ORG and it extended , as was not challenged by the newspapers , to discouraging the use of the GPE market for the dissemination of unauthorised memoirs of ORG officers .

( ii ) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial , for that would sweep aside the public - interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts .

( d ) Lord Bridge of GPE

( i ) The case in favour of maintaining the PERSON injunctions - which had been properly granted in the first place - would not be stronger at the trial than it was now ; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out .

( ii ) Since the Spycatcher allegations were now freely available to the public , it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information .

( iii ) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers , but the question was whether the PERSON injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech . The argument that their continuation would have a deterrent effect was of minimal weight .

( iv ) The attempt to insulate the NORP public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and , if pursued , would lead to the ORG ’s condemnation and humiliation by ORG .

( e ) Lord PERSON of GPE

( i ) Mr Justice PERSON ’s initial order was entirely correct .

( ii ) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations , but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher . It was questionable whether it was right to use the injunctive remedy against the newspapers ( who had not been concerned with that publication ) for the remaining purpose which the injunctions might serve , namely punishing PERSON and providing an example to others .

( iii ) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial . However , in the light of the public availability of the Spycatcher material , it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime . No arguable case for permanent injunctions at the trial therefore remained and the PERSON injunctions should accordingly be discharged .

ORG On DATE ORG of Appeal delivered judgment dismissing the Attorney General ’s appeal ( see paragraph CARDINAL above ) ; the majority held that his claim was not justiciable in an NORP court since it involved either an attempt to enforce indirectly the public laws of a foreign ORG or a determination of the question whether publication would be detrimental to the public interest in GPE .

The Attorney General appealed to ORG of GPE . In view of the publication of ORG in GPE and elsewhere , that court declined to grant temporary injunctions restraining its publication in GPE pending the hearing ; it was published in that country on DATE . The appeal was dismissed on DATE , on the ground that , under international law , a claim - such as the Attorney General ’s - to enforce NORP governmental interests in its security service was unenforceable in the NORP courts .

Further proceedings brought by the Attorney General against newspapers for injunctions were successful in GPE but not in GPE .

ORG In the meantime publication and dissemination of Spycatcher and its contents continued worldwide , not only in GPE ( CARDINAL copies were printed and nearly all were sold by DATE ) and in GPE ( CARDINAL copies printed ) , but also in GPE ( CARDINAL copies printed , of which CARDINAL were sold within DATE ) and GPE ( CARDINAL copies printed and distributed ) . CARDINAL copies were sent to various NORP countries other than GPE and copies were distributed from GPE in NORP countries . Radio broadcasts in LANGUAGE about the book were made in GPE and GPE and it was translated into CARDINAL other languages , including CARDINAL NORP .

ORG On DATE the Attorney General instituted proceedings against ORG for breach of confidence ; in addition to injunctive relief , he sought a declaration and an account of profits . The substantive trial of that action and of his actions against PERSON ( see paragraph CARDINAL above ) - in which , by an amendment of DATE , he now claimed a declaration as well as an injunction - took place before Mr Justice PERSON in ORG in DATE . He heard evidence on behalf of all parties , the witnesses including Sir PERSON ( see paragraph CARDINAL above ) . He also continued the interlocutory injunctions , pending delivery of his judgment .

ORG Mr Justice PERSON gave judgment on DATE ; it contained the following observations and conclusions .

( a ) ORG The ground for the Attorney General ’s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of ORG .

( b ) ORG Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential , the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure .

( c ) ORG Account should be taken of LAW ) of the LAW and the judgments of ORG establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a " pressing social need " for the limitation and it was " proportionate to the legitimate aims pursued " .

( d ) Mr PERSON owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MICARDINAL . He broke that duty by writing PERSON and submitting it for publication , and the subsequent publication and dissemination of the book amounted to a further breach , so that the Attorney General would be entitled to an injunction against PERSON or any agent of his , restraining publication of ORG in GPE .

( e ) ORG O.G. were not in breach of their duty of confidentiality , created by being recipients of PERSON unauthorised disclosures , in publishing their respective articles of CARDINAL and DATE ( see paragraph CARDINAL above ) : the articles were a fair report in general terms of the forthcoming trial in GPE and , furthermore , disclosure of CARDINAL of PERSON allegations was justified on an additional ground relating to the disclosure of " iniquity " .

( f ) ORG , on the other hand , had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on CARDINAL DATE ( see paragraph CARDINAL above ) , since those extracts contained certain material which did not raise questions of public interest outweighing those of national security .

( g ) ORG were liable to account for the profits accruing to them as a result of the publication of that instalment .

( h ) ORG The Attorney General ’s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since DATE had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book ; as regards this issue , a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming .

( i ) ORG The Attorney General was not entitled to a general injunction restraining future publication of information derived from Mr PERSON or other members of ORG .

After hearing argument , Mr Justice PERSON imposed fresh temporary injunctions pending an appeal to ORG ; those injunctions contained a proviso allowing reporting of the NORP proceedings ( see paragraphs CARDINAL above ) .

ORG On appeal by the Attorney General and a cross - appeal by ORG , ORG ( composed of Sir PERSON , Master of the Rolls , Lord Justice PERSON and Lord Justice PERSON ) affirmed , on DATE , the decision of Mr Justice PERSON .

However , Sir PERSON disagreed with his view that the articles in the Observer and The ORG had not constituted a breach of their duty of confidence and that the claim for an injunction against these CARDINAL newspapers in DATE was not " proportionate to the legitimate aim pursued " . Lord Justice PERSON , on the other hand , disagreed with PERSON Justice PERSON ’s view that ORG had been in breach of duty by publishing the first instalment of extracts from Spycatcher , that they should account for profits and that the Attorney General had been entitled , in the circumstances as they stood in DATE , to injunctions preventing further serialisation .

After hearing argument , ORG likewise granted fresh temporary injunctions pending an appeal to ORG ; PERSON and ORG were given liberty to apply for variation or discharge if any undue delay arose .

ORG On DATE ORG ( Lord PERSON of GPE , Lord PERSON , Lord PERSON , Lord PERSON of Chieveley and Lord GPE of GPE ) also affirmed Mr Justice PERSON ’s decision . Dismissing an appeal by the Attorney General and a cross - appeal by ORG , it held :

" ( i ) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others ; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information ; that in seeking to restrain the disclosure of government secrets the ORG must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted ; that since the world - wide publication of ORG had destroyed any secrecy as to its contents , and copies of it were readily available to any individual who wished to obtain them , continuation of the injunctions was not necessary ; and that , accordingly , the injunctions should be discharged .

( ii ) ( Lord PERSON dissenting ) that the articles of DATE and DATE ] had not contained information damaging to the public interest ; that the Observer and The ORG were not in breach of their duty of confidentiality when they published [ those ] articles ; and that , accordingly , the ORG would not have been entitled to a permanent injunction against both newspapers .

( iii ) That ORG was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on DATE ; that it was not protected by either the defence of prior publication or disclosure of iniquity ; that imminent publication of the book in GPE did not amount to a justification ; and that , accordingly , ORG was liable to account for the profits resulting from that breach .

( iv ) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done ; that no injunction should be granted against the Observer and The ORG restraining them from reporting on the contents of the book ; and that ( Lord PERSON dissenting ) no injunction should be granted against ORG to restrain serialising of further extracts from the book .

( v ) ORG That members and former members of ORG owed a lifelong duty of confidence to the ORG , and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in GPE derived from any member or former member of ORG . "

ORG The substantive trial of the Attorney General ’s actions for contempt of court against ORG , The London Evening Standard , ORG ( see paragraph CARDINAL above ) , PERSON ( see paragraph CARDINAL above ) and certain other newspapers took place before Mr Justice PERSON in ORG in DATE . On DATE he held , inter alia , that ORG had been in contempt of court and imposed a fine of £ MONEY in each case .

ORG On DATE ORG dismissed appeals by the latter CARDINAL newspapers against the finding that they had been in contempt but concluded that no fines should be imposed . A further appeal by ORG against the contempt finding was dismissed by ORG on DATE .