5.  The applicant was born in 1986. Since February 2015 he has been kept in a detention centre for foreign nationals in the town of Makhachkala, Dagestan Republic, Russia. 6.  The applicant arrived in Russia in October 2011. He was in possession of a visa declaring the purpose of his visit as business. The applicant’s visa was due to expire in October 2012. However, the visa allowed the applicant to stay in Russia for no longer than ninety days in the course of a single visit. As submitted by the Government, he was therefore expected to leave Russia in early 2012. 7.  The applicant did not leave and started to live together with Ms B., a Russian national. In November 2013 they had a child together. In April 2014 they married. 8.  In the meantime, on 15 and 19 February 2013 the applicant was found guilty of an offence under Article 18.10 of the Code of Administrative Offences (CAO), which provided that a foreigner could be punished for unlawful employment activities in Russia. 9.  By judgment of 26 February 2015 the Sovetskiy District Court of Makhachkala found the applicant guilty of an offence under Article 18.8 § 1.1 of the CAO (see paragraph 24 below), of remaining in Russia after the expiry of the visa. It sentenced him to a fine and a penalty of forcible administrative removal (принудительное административное выдворение) from Russia. The District Court held as follows:
“Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with or without administrative removal from Russia ...
 The subsidiary penalty of administrative removal from Russian may be imposed with due regard to the information that confirms the actual need to impose such a penalty on the defendant, as well as the information that confirms the proportionality of this penalty as the only acceptable measure for achieving a balance between the public and private interests at stake ...
The defendant has no legal grounds for remaining in Russia. If a fine is imposed, the defendant will add himself to the group of illegal labour immigrants who do everything to avoid compliance with the Russian migration legislation. The penalty of administrative removal is also necessary for the sake of national security, to avoid the spread of various infectious diseases such as HIV, tuberculosis and leprosy, and to ensure the optimal balance of labour resources and in order to support, as a matter of priority, the employment of Russian nationals ...” 10.  In the same judgment the District Court ordered that, while awaiting enforcement of the administrative removal, the applicant be placed in a special detention facility for foreigners in the town of Makhachkala. 11.  Lawyer D. lodged a statement of appeal on behalf of the applicant against the judgment of 26 February 2015. It appears that the applicant raised arguments relating to his family life in Russia; it is unclear whether he raised any argument relating to a risk to his life and physical integrity in the event of enforcement of the penalty of forcible removal. 12.  On 4 March 2015 the Supreme Court of the Dagestan Republic upheld the judgment. The appeal court held as follows:
“Article 18.8 § 1.1 of the CAO provides for the following penalties: a fine of between 2,000 and 5,000 roubles with administrative removal from Russia ...
[The applicant] has committed a violation of the regime applicable for the presence of foreigners in Russia, by way of omitting after 7 October 2012 to leave Russia ...
The court dismisses [the applicant’s] argument relating to his family life in Russia ... The marriage with Ms B. was concluded on 28 April 2014, which was a long time after the commission of the offence by [the applicant] ... The administrative offence record did not contain any information relating to his family life in Russia. No such information was adduced during the proceedings before the first-instance court ...
[The applicant’s] prolonged violation of the migration legislation since October 2012 amounts to abuse of Russia’s hospitality and thus should be treated as a breach of the receiving country’s interests ...” 13.  On an unspecified date the applicant received a copy of the appeal decision. 14.  The penalty of administrative removal was not enforced. According to the Government, the bailiff service instituted enforcement proceedings on 12 March 2015, but they were not pursued on account of an application lodged by the applicant for temporary asylum (see below). 15.  On 5 May 2015 the applicant applied for temporary asylum. He referred to the ongoing intensive military actions in Syria, in particular in his home town of Aleppo. He further argued that given his age, he would be drafted by the governmental forces for active military service, thereby putting his life and physical integrity in danger. 16.  It appears that the applicant engaged lawyer K. to assist him in those proceedings and had a meeting with him in the detention centre. On 2 June 2015 the applicant called the lawyer from the detention centre, complaining of beatings. On the same day, the lawyer was refused access to the applicant in the detention centre, apparently because he should have obtained authorisation for the visit from the regional migration authority. The lawyer wrote to the regional prosecutor’s office complaining of a violation of the applicant’s rights and physical integrity. 17.  On 4 June 2015 the lawyer made a further unsuccessful attempt to gain access to the applicant. 18.  On 6 August 2015 the local migration authority dismissed the applicant’s application for temporary asylum. The applicant sought review of this refusal before the Federal Migration Service (“the FMS”). On 24 September 2015 the FMS upheld its decision, stating as follows:
“In February 2012 there were no large-scale military operations in Syria; there were only localised hostilities between governmental forces and opposition groups. Despite the above, the applicant failed to leave Russia ... At the time he did not apply for asylum and continued to stay in Russia unlawfully until the imposition of the penalty of administrative removal.
The following violations of the migration rules for foreigners should be pointed out:
The applicant arrived in Russia under a business visa, whereas his actual goal was employment. Thus, his declared aim did not correspond to the actual aim for arriving in Russia.
The applicant was unlawfully engaged in employment activities ...
In February 2013 he was twice prosecuted for administrative offences. However, even after this, he did not seek asylum, while neglecting the real possibility of his future deportation from Russia ...
The Ministry of Foreign Affairs points out that Syrian nationals who return to their homeland or who are deported or expelled there may arrive in Damascus and then proceed to other regions that are controlled by governmental forces.” 19.  On 14 October 2015 the applicant, assisted by lawyer M., sought judicial review of the refusal of temporary asylum under the Code of Administrative Procedure (“the CAP”) and asked the Leninskiy District Court of Makhachkala to put in place an interim measure by way of suspending enforcement of the judgment of 26 February 2015. On 16 October 2015 the court refused to deal with the case, concluding that it had to be lodged before a court with jurisdiction in the area of the applicant’s current “place of residence”; his stay in the detention centre did not qualify as a place of residence. 20.  Assisted by Ms Biryukova (who is his representative before this Court) the applicant resubmitted his application for judicial review to the Basmannyy District Court of Moscow. On 27 October 2015 the District Court left the matter without examination because the applicant had not indicated the date and place of his birth; had not specified whether he had a law degree, which was relevant because the case could only be lodged by a person in possession of a law degree; and had not provided evidence that his representative had a law degree. The applicant was required to remedy the above defects by 18 November 2015. 21.  By a judgment of 9 December 2015 the District Court upheld the refusals of temporary asylum. The court held that the applicant was at risk of violence which was no more intensive than for other people living in Syria:
“The grounds for granting temporary asylum on account of humanitarian considerations include the following situations: a grave medical condition for which the foreigner will not receive the requisite medical care in the country of nationality, thus putting his or her life at risk; a real threat to his or her life or liberty on account of hunger, epidemics, emergency situations of environmental or industrial origin or on account of an internal or international conflict that encompasses the entire territory of the state of nationality; a real threat of being subjected to torture or another cruel, inhuman or degrading treatment or punishment in the country of nationality.
Under Article 62 of the Code of Administrative Procedure the parties to the case must prove the circumstances to which they refer as the basis for their claims or objections, unless otherwise provided for by the Code.
Assessing the evidence submitted to it, the court concludes that [the applicant] has not adduced convincing arguments that he is at risk of being persecuted by the authorities or by groups of the population on account of his religion, race or membership of a social group ... Despite the difficult social and political situation in Syria, there are no grounds to consider that his life will be at a higher risk than that of other people living in this country ... According to information from the Federal Migration Authority, people returning to Syria may reach directly the city of Damascus, which is under the control of the government. ...” 22.  The applicant received a copy of the judgment in February 2016 and lodged an appeal. He argued that the first-instance court had not paid proper attention to his argument relating to the risk to his life and physical integrity in the event of his removal to Syria; the migration authority had not refuted his argument while the court had shifted the burden of proof onto the applicant and had placed undue emphasis on the illegality of the applicant’s presence in Russia. His appeal was dismissed by the Moscow City Court on 8 June 2016. The appeal court held as follows:
“The first-instance court considered that the applicant did not fall within the scope of the notion of “refugee” under the Refugees Act ... In view of the applicant’s failure to submit specific facts disclosing that in the event of his removal to Syria he would be exposed to a real threat to his security ... or that he was persecuted in this country, the appeal court agrees with the first-instance court ... The appeal court also notes that the applicant arrived in Russia in 2011 but only sought temporary asylum in 2015.”


4.  The applicant was born in 1956 and lives in Hatay. 5.  On 20 February 1998 the applicant’s ten-year-old son, Erhan Cevrioğlu, was found dead, together with his friend G.B., who was around the same age, after falling into a water-filled hole on a construction site where they had apparently been playing. The cause of death was determined as drowning. 6.  The hole on the construction site was covered by the Municipality of Antakya (“the Municipality”) in the aftermath of this tragic incident. 7.  Shortly after the incident, criminal proceedings were instigated against the owner of the construction site, H.C. (also referred to as “the employer”) and three officials from the Antakya Municipality for causing death by negligence and failing to comply with the regulations and orders, pursuant to Article 455 of the Criminal Code in force at the material time (Law no. 765). 8.  During the course of the criminal proceedings the Hatay Criminal Court of First Instance obtained three different expert reports with a view to determining liability for the death of the applicant’s son.
(a)  The first expert report 9.  The first report, dated 16 April 1998, was drawn up by three civil engineers. The report noted at the outset that the hole in question, which measured 5 x 15 metres with a 2 metre depth, had been dug in the side yard of the construction for use as a shelter and no safety measures had been taken to enclose it. The hole was located 36 metres from the main avenue and 18 metres from the closest apartment building. The witnesses interviewed at the scene of the incident, including two construction workers, confirmed that no precautions had been taken to cover or otherwise enclose the hole. The two workers indicated that they had initially placed wooden planks on the south side of the hole but had later removed them after discovering that children were throwing them into the hole. They further stated that the construction workers were aware that the hole in question regularly filled up with rainwater and one of them said that they occasionally used the water that accumulated in the hole for construction work. The workers disagreed, however, as to when the hole had been dug: while one of them claimed that it had been there since June or July 1997, the other one said that it had been dug only two months prior to the incident. 10.  On the basis of their observations and the witness statements, the committee of experts concluded that the deceased children had been partly at fault for the incident (25%), as the construction site where they had been playing was clearly not a play area. The experts noted that the Municipality also bore 25% responsibility for the two children’s deaths, as (i) they had failed to duly inspect whether the construction, for which it had issued a permit, had complied with the rules on work safety, and to ensure that the construction site had been properly closed off with wooden panels as a safety measure, and (ii) it was not clear on what legal ground it had allowed the digging and the use of the hole in question as a shelter, as such shelters had to be built beneath buildings and not in open spaces. According to the experts, the remaining responsibility (50%) lay with the owner, H.C., who had failed to put in place the necessary safety measures on the construction site, such as building a wooden fence around the hole, erecting warning signs or recruiting a security guard to control access to the construction site.
(b)  The second expert report 11.  On 25 May 1998 a second report was prepared by three occupational safety experts. Reiterating the factual findings in the previous report of 16 April 1998, the experts identified four main causes of the accident in question: (i) absence of wooden panels around the construction site, which was located in a residential area in close proximity to other houses and public roads; (ii) absence of any railing around the hole; (iii) absence of signs prohibiting entry into the construction site or warning against the water-filled hole on the site; and (iv) lack of diligence of the deceased children. The experts indicated that responsibility for all of the causes identified, save for the last one, lay with the employer, in accordance with the relevant provisions of the Labour Code (Law no. 1475) and the Regulation on Workers’ Health and Occupational Safety in Construction Work (Yapı İşlerinde İşçi Sağlığı ve İş Güvenliği Tüzüğü) in force at the material time. They noted that, according to the information provided to the investigation authorities by the applicant, the hole in question had been open for the past eight to ten months, and a number of residents from the neighbourhood had warned H.C. to take the necessary safety measures against the hazards on the construction site, particularly vis-à-vis children. However, H.C. had disregarded all their warnings, saying that parents were responsible for attending to the safety of their children. They further noted that at the time of the incident the construction work had been suspended and the site had been unsupervised. 12.  Relying on the information and evidence they had gathered, the experts concluded that H.C. had principal liability for the incident (75%) on account of his failure to take the necessary safety precautions in and around the construction site in compliance with the relevant laws and regulations. They stressed that the failure to install wooden panels around the construction site was one of the principal reasons for the accident. They further found that the remaining responsibility lay with the deceased children, as they should have been aware of the perils of entering a construction site and approaching a water‑filled hole, even at their young age. The experts considered, lastly, that while the Municipality had a general duty to inspect construction sites and impose penalties for breaches of the laws, they could not be held accountable for failing to conduct inspections, impose safety precautions or issue penalties unless it could be proven with conclusive evidence that the authorities had overlooked the deficiencies on the construction site despite having been aware of them, or had otherwise neglected their duties, which evidence was lacking in the instant case.
(c)  The third expert report 13.  On 4 April 1999 a third expert report was issued by a committee of experts from the Istanbul Technical University. The report indicated that neither the construction site nor the hole in which the deceased children had drowned had been surrounded by panels or a wooden fence to prevent unauthorised access. Similarly, there had been no warning signs around the construction site or the hole. According to the expert report, H.C. had made the following statements in the aftermath of the incident before the investigative authorities and the trial court:
“... [After digging the hole on the construction site], I enclosed the hole with wooden planks. Children kept removing the planks. That is why the hole was not closed off. [At the time of the incident] the hole was filled with water following rainfall. On a previous occasion, we had pumped the rainwater out. I was in Ankara at the time [of the incident]. I have no fault here... . If I had not been out of town, I would have checked the hole and covered it.
...
In view of the size and depth of the hole, it was not possible to cover it. We had therefore put planks around it... There were no warning signs around the hole. I was in Ankara when the incident took place, and the construction had stopped while I was gone. The hole filled up with water whenever it rained... It must have filled up again when I was away, there was no opportunity to remove the water.” 14.  Referring to the relevant provisions of the Labour Code, the Regulation on Workers’ Health and Occupational Safety in Construction Work and the Municipalities Act (Law no. 1580) in force at the material time (see “Relevant domestic law”, below, for further details), the experts from the Istanbul Technical University found that H.C. and the Municipality were 75% and 25% at fault respectively and that no liability could be attributed to the deceased children. They indicated that since the construction work had started, none of the safety measures required under the relevant legislation had been put in place. Moreover, no permission had been obtained for the digging of the hole or the “shelter” in question, which had claimed the two children’s lives; nor had any safety measures been taken around it to prevent accidents. The experts stressed that the dangers posed by the hole had been aggravated when it rained, as the muddy surface made it easier for people to slip and fall in. The responsibility for failure to take any safety measures around the hole or to prevent access to the construction site, despite the knowledge that the site attracted children, fell firstly on the contractor and then on the Municipality, which was required to inspect the construction site periodically in order to identify deficiencies and issue the necessary warnings; the Municipality authorities had clearly neglected that duty.
(d)  Judgment of the Hatay Criminal Court of First Instance 15.  On 14 April 2000, relying on the third expert report, the Hatay Criminal Court of First Instance held that İ.H.S., who was the director of reconstruction at the Municipality (belediye imar müdürü), and the construction owner, H.C., were 25% and 75% responsible for the incident respectively. Accordingly, the court found the accused guilty as charged. 16.  However, on 9 July 2001 the Court of Cassation quashed that judgment, finding that the case should have been examined under Law no. 4616, which provided, inter alia, for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999. 17.  Accordingly, on 6 August 2001 the trial court decided, pursuant to section 1(4) of Law no. 4616, that the criminal proceedings should be suspended and eventually discontinued if no offence of the same or of a more serious kind was committed by the defendants within the next five years. 18.  On 16 September 2002 the family members of both deceased children, including the applicant, initiated compensation proceedings before the Hatay Civil Court of First Instance against H.C., his construction company and the Antakya Municipality, arguing that they bore joint responsibility for their children’s deaths. The applicant and his family claimed 5,000,000,000 Turkish liras (TRL)[1] in respect of pecuniary damage and TRL 3,000,000,000[2] in respect of non-pecuniary damage, together with interest accrued from the date of the incident. 19.  On 5 November 2004 an expert report was prepared by a mechanical engineer, who was also an expert on occupational safety, and an architect at the request of the Hatay Civil Court of First Instance. After setting out the circumstances in which the incident had occurred, much like in the previous reports submitted to the criminal court, and referring to the relevant provisions of the Labour Code and the Regulation on Workers’ Health and Occupational Safety in Construction Work, the experts concluded that H.C. bore 85% of the responsibility for the incident on account of his failure to take the necessary safety measures on the construction site, such as erecting wooden panels or other fencing around the site, taking special precautions in those parts of the site that presented a danger of falling, placing warning signs as necessary, informing the construction workers of possible hazards at the construction site and employing a guard to control access to the site. They indicated in particular that the unenclosed hole, which had been opened in June or July 1997, had presented a grave danger for the residents and the children in the neighbourhood, which risk increased when the hole filled with water and became slippery on the edges following rainfall. They also stressed that, according to the relevant Court of Cassation jurisprudence, the responsibility of the employer was not limited to putting the necessary safety measures in place to avert the existing and potential dangers on the construction site, but he or she was also required to supervise compliance with those measures. 20.  Turning to the liability of the deceased children, the report held that while it was natural for the children to have been playing out on the street, they should not have entered the construction site and approached the water-filled hole, the dangers of which were obvious bearing in mind in particular that the ground had been slippery at the relevant time. It therefore found that the children bore the remainder of the liability for their own deaths on account of their failure to display the necessary care and diligence. 21.  As for the alleged responsibility of the Municipality, the experts stated that the latter had had no involvement in the construction, apart from issuing the necessary permits. Moreover, the accident had occurred within the boundaries of the construction site, and not in a public space or other area under the direct responsibility of the Municipality. In such circumstances, the Municipality could not be held responsible for the deficiencies on the construction site; otherwise, the Municipality would have to be held liable for all accidents occurring in any construction. They accordingly concluded that the owner of the construction site bore sole responsibility for the site. 22.  On 22 March 2005 the Hatay Civil Court of First Instance upheld the applicant’s case in part. The court stated that, after examining the findings of the Hatay Criminal Court of First Instance and the expert reports submitted to that court, it had requested a further expert report in order to clarify the conflicting aspects of the previous reports. On the basis of that final report, the court established that the responsibility of H.C. and his construction company for the incident was 85%. It thus concluded that H.C. and the construction company were to pay TRL 5,000,000,000 in respect of pecuniary damage to the applicant and his wife and TRL 3,000,000,000 in respect of non-pecuniary damage to the applicant, his wife and their three surviving children as requested, with interest accrued from the date of the incident. The court dismissed the case concerning the Municipality, as no fault could be attributed to it on the facts before it. 23.  On 12 April 2006 the applicant, along with the other claimants, appealed against the decision of the first-instance court. They mainly argued that, despite the Municipality’s liability for the incident having been established in the criminal proceedings, the Hatay Civil Court of First Instance had ordered a new expert report against their wishes, and moreover had disregarded their objections concerning the findings in the said report. The Municipality was clearly responsible for the deaths of the two children for having tolerated the presence of a large and uncovered water-filled hole in the very centre of the city for months on end, yet its responsibility had been disregarded by the first-instance court. 24.  On 18 June 2007 the Court of Cassation quashed the judgment with regard to the part concerning the Municipality. It noted that the first‑instance court should have dismissed the case against the Municipality at the outset for procedural reasons, without examining its substance, as the complaints concerning the Municipality’s responsibility to inspect the construction site fell within the jurisdiction of the administrative courts. The Court of Cassation upheld the rest of the judgment. 25.  Accordingly, on 11 December 2007 the Hatay Civil Court of First Instance dismissed the case against the Municipality. The court also noted that its previous judgment concerning H.C. and his construction company had become final and that there was no need to render a new judgment in respect of that part of the case. 26.  The applicant did not appeal against that judgment, which eventually became final on 16 February 2009. 27.  On an unspecified date in 2009 the applicant, together with other family members, brought compensation proceedings before the Hatay Administrative Court against the Municipality for the death of their son and brother Erhan Cevrioğlu due to the alleged negligence on the part of the Municipality in the discharge of its inspection duties. 28.  On 31 December 2009 the Hatay Administrative Court requested a copy of the case file pertaining to the compensation proceedings initiated by the applicant and others from the Hatay Civil Court of First Instance. Subsequently, on 29 January 2010 the Administrative Court requested the case file of the criminal proceedings against H.C. and the municipality officials from the Hatay Criminal Court of First Instance. On 23 March 2010 the Administrative Court also requested the applicant’s lawyer to submit the relevant criminal court decision along with the expert reports submitted to that court. 29.  On 9 December 2010 the Hatay Criminal Court of First Instance informed the Administrative Court that the relevant criminal case file could not be found. However, on 14 February 2011 the applicant’s lawyer submitted the requested documents to the administrative court. In the meantime, the case file pertaining to the compensation proceedings was also made available by the Hatay Civil Court of First Instance. 30.  On 11 March 2011, relying solely on the expert report submitted to the Hatay Civil Court of First Instance on 5 November 2004, and without undertaking any analysis of its own as to the responsibilities of the Municipality under the applicable legislation and whether it had fulfilled those responsibilities, the Hatay Administrative Court held that no fault was attributable to the Municipality on the facts of the instant case and thus dismissed the compensation claims of the applicant and his family. The Hatay Administrative Court emphasised in its judgment that the earlier ruling of the Hatay Civil Court of First Instance, which had apportioned liability for the incident between H.C. and his company and the deceased children, had also been upheld by the Court of Cassation. 31.  On 15 November 2011 the Adana District Administrative Court upheld the judgment of the first-instance court, and on 26 April 2012 it rejected rectification requests lodged by the applicant and his family. 32.  According to a declaration submitted to the Hatay Civil Court of First Instance on 23 October 2013 by the lawyer who had represented the applicant in the proceedings before that court, the applicant and his family had not received any compensation from H.C. and his company, nor had they commenced enforcement proceedings against the latter.


5.  The applicants, Mr Ramaz Tsartsidze, Mr Samvel Bozoyani, Mr Mamuka Gelashvili (applicants nos. 1-3, case no. 1); Mr Alexander Mikirtumov, Mr Binali Aliev (applicants nos. 4-5, case no. 2); Mr Gia Dzamukov, Mr Vladimer Gabunia (applicants nos. 6-7, case no. 3); Mr Boris Gogoladze, Ms Anastasia Tvaradze, Ms Madona Kapanadze (applicants nos. 8-10, case no. 4); and Mr Jimsher Gogelashvili, Mr George Kurua and Mr Omar Chubinidze (applicants nos. 11-13, case no. 5) are all Jehovah’s Witnesses. Their application to the Court relates to five cases of religiously motivated aggression to which they were allegedly subjected in Georgia at various times. The events described in cases nos. 1 and 4 were the subject of the Court’s examination in the case of Begheluri and Others v. Georgia (no. 28490/02, 7 October 2014). 6.  The following account of the facts is based on the applicants’ submissions. 7.  This part of the application concerns the applicants Mr R. Tsartsidze, Mr S. Bozoyani and Mr M. Gelashvili (applicants nos. 1-3). 8.  On 16 September 2000 nineteen coaches and several cars with Jehovah’s Witnesses headed to Marneuli to attend the convention at Mr Tsartsidze’s premises. The police set up checkpoints along the route and blocked the roads, preventing the Jehovah’s Witnesses from reaching their destination. At the same time, the police authorised a coach containing extremist members of the Orthodox Church, led by Mr V. Mkalavishvili, also known as Father Basil (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 11, 3 May 2007), to continue their journey to Marneuli in order to attack and damage the site within Mr Tsartsidze’s property where the Jehovah’s Witnesses were to gather. The attackers destroyed objects for religious use and seized items belonging to others. The police officers who were in attendance refused to intervene. Property belonging to the Jehovah’s Witnesses, including 1.5 tonnes of religious literature was confiscated. The religious literature was burnt in the street. Other items (tents, 400 benches, and other items) were distributed to local residents by Father Basil’s supporters (see Begheluri and Others, cited above, §§ 16-21). 9.  According to estimates made on 25 January 2001 and 28 February 2002, the stolen and destroyed equipment and material was worth about 9,000 euros (EUR) and the 1.5 tonnes of stolen and burnt religious literature was worth about EUR 700. 10.  On 16 October 2000 applicants nos. 1-3, other Jehovah’s Witnesses, the representation of the Pennsylvania Watchtower in Georgia and the Union of Jehovah’s Witnesses, lodged an administrative complaint with the Mtatsminda-Krtsanisi District Court in Tbilisi against the Ministry of the Interior, the governor of Marneuli, the Marneuli chief of police and his deputy and twelve other police officers involved in the case. The applicants sought compensation for the pecuniary and non-pecuniary damage caused by the State’s agents. 11.  On 8 May 2001 the Mtatsminda-Krtsanisi District Court decided to consider the Ministry of the Interior as a third-party intervener and referred the case to the Marneuli District Court for examination. 12.  On 13 May 2002 the Marneuli District Court dismissed the applicants’ complaint as ill-founded. The court considered it to have been shown that individuals acting under the orders of Father Basil had attacked Mr Tsartsidze’s property and the Jehovah’s Witnesses. As to the Marneuli police, the court held that they had not been informed that a convention was due to be held on 16 September 2000 at Mr Tsartsidze’s home and had been taking part on that date in an anti-drugs operation in the area bordering Azerbaijan. The court found that the defendants who were police officers had gone to the scene only after the attack in question and had only been able to observe the damage that had already been done. They could not therefore have contributed by being passive or taking part in the acts of religious aggression against the applicants. 13.  On 18 June 2002 the applicants lodged an appeal with the Tbilisi Regional Court complaining that the court of first instance had ignored the fact that the police had turned back the Jehovah’s Witnesses but had allowed Father Basil and his supporters to go through the same checkpoints. The applicants argued that their witness statements had been disregarded by the first-instance court in favour of unsubstantiated statements by the police officers. The applicants also challenged the status of third-party intervener granted to the Ministry of the Interior in spite of the fact that it had been cited as a defendant. 14.  On 30 December 2003 the regional court dismissed the applicants’ appeal on the same grounds as the first-instance court. 15.  On 29 September 2004 an appeal on points of law by the applicants was dismissed by the Supreme Court, which considered that the applicants had not demonstrated an “intentional” or “negligent” breach of professional obligations by the police officers. 16.  This part of the application concerns Mr Alexander Mikirtumov and Mr Binali Aliev, applicants nos. 4 and 5. 17.  On 26 October 2000, when about thirty members of the Azerbaijani Congregation of Jehovah’s Witnesses were preparing to hold a meeting in Marneuli at Mr Aliev’s home, five plainclothes police officers entered the property. They included S.Kh. and G.N., who, a few days earlier, had allegedly taken part in the attack on the Jehovah’s Witnesses at Mr Tsartsidze’s property (see case no. 1), and N.N. The police officers stated that the meeting could not go ahead. Using insulting language towards the participants, they ordered them to leave the premises. They confiscated religious books and Bibles belonging to the Jehovah’s Witnesses. 18.  Mr Aliev and Mr Mikirtumov, a pastor, were taken to the police station. There, they were insulted by Officer G.N., who ordered Mr Mikirtumov to leave Marneuli and never to return, otherwise he would face serious problems. S.Kh. ordered Mr Aliev not to hold any more religious gatherings at his home if he wished to avoid problems with the police. Mr Mikirtumov was then forced into a car and driven away from Marneuli. 19.  On 27 November 2000 the two applicants, together with the representation of the Pennsylvania Watchtower in Georgia and the Union of Jehovah’s Witnesses, lodged an administrative complaint with the Mtatsminda-Krtsanisi District Court against the Ministry of the Interior and the police officers involved. As well as identifying the three police officers, the applicants also gave the number plates of the two vehicles in which the police officers had arrived. They asked that the Ministry of the Interior make a public apology, in accordance with the Police Act, and bring disciplinary proceedings against its staff. The applicants also asked that they be paid compensation in respect of non-pecuniary damage and that a directive be sent to all police stations in the country, saying that the rights of Jehovah’s Witnesses were to be respected. 20.  On 6 June 2001 the case was sent to the Marneuli District Court, which sent it in turn to the Bolnisi District Court on 14 May 2002. 21.  Questioned by that court, the applicants and other people who had attended the meeting confirmed the above-mentioned facts. Officers S.Kh. and G.N. denied the accusations. While G.N. claimed that he had never entered Mr Aliev’s property on the date in question and was seeing the applicants for the first time, S.Kh. stated that he had that day seen G.N. and other police officers, who were his subordinates, in front of Mr Aliev’s house. He had gone to see what was happening. G.N. had explained that a group of people had informed the police that a meeting of Jehovah’s Witnesses was due to be held and had asked the police to intervene before they did so themselves. The police officers had therefore been obliged to go to the premises. According to S.Kh., G.N. had entered Mr Aliev’s property in order to ask him not to hold the meeting, so as to avoid a clash with the group of individuals in question. S.Kh. stated that he had then continued his journey and denied having taken the two applicants to the police station. He acknowledged, however, that G.N., Mr Aliev and Mr Mikirtumov had been taken together “somewhere”. According to S.Kh., if the applicants had been taken to the police station on the day concerned they would have been questioned, and their visit to the police station duly registered. He criticised the applicants for failing to lodge a complaint with the police chief if they had indeed been taken unlawfully to the police station. 22.  The two applicants, on the contrary, submitted that they had been taken to S.Kh.’s office and that he had ordered that they be required to give written undertakings, respectively, to leave Marneuli and for Mr Aliev not to allow religious meetings at his home. S.Kh. denied those allegations also. 23.  On 17 June 2003 the proceedings brought by the applicants were dismissed as ill-founded. In the court’s opinion, it had not been established that the police officers in question had prevented the religious meeting from being held at Mr Aliev’s home, confiscated the religious books and taken the two applicants to the police station in order to forbid them from performing religious rites in accordance with their faith. With regard to the statements made by four eyewitnesses, the court held that they were not reliable because they had been made by people taking part in the meeting, who had an interest in supporting the applicants’ complaint. Moreover, the statements made by the complainants had been completely rejected by the police officers. Consequently, the court found that there was nothing to prove that the police officers had failed in their professional obligations, within the meaning of Article 1005 § 1 of the Civil Code. 24.  On 21 October 2004 the Tbilisi Regional Court upheld the judgment of 17 June 2003, on the same grounds as those used by the lower court. 25.  On 23 February 2005 the Supreme Court, ruling in written proceedings, dismissed an appeal by the applicants on points of law. It concluded that the applicants had failed to prove either an intentional or a negligent breach of duties by the respondent police officers. 26.  This part of the application concerns Mr Gia Dzamukov and Vladimer Gabunia (applicants nos. 6 and 7 respectively). 27.  On 2 September 2000, while in possession of religious tracts, Mr Dzamukov was stopped in the street in Kutaisi by two uniformed police officers, E.K. and E.Ch. His bag with religious literature was confiscated and he was taken to the police station. The applicant was struck by several police officers, including E.Ch., before being released. Before leaving the police station, the applicant asked that his belongings be returned to him. In reply, E.Ch. came up to him and attempted to strangle him with his tie, ordering the applicant to get out of his sight. Outside the station, police officers blocked his path and threatened to beat him with their truncheons. Seeing that the applicant refused to leave and insisted that the confiscated religious literature be returned, a police officer came up and threw his Bible in his face. 28.  On returning home, the applicant and his wife noticed that his chest was red. He also found it painful. His wife immediately went to the police station, protesting about the way her husband had been treated, and asking for the return of the confiscated belongings. She was, in turn, insulted and chased out of the premises. 29.  On the following day, Mr Gabunia, applicant no. 7, was walking in the street in Kutaisi with religious tracts. He gave one to E.K., who was accompanied by another police officer. In response, E.K. reprimanded him, stating that his conduct was not worthy of a Christian. B.M., the second police officer, punched him in the stomach and, after he had fallen to the ground, pulled his bag away from him. The police officers emptied the bag and tore up the religious literature inside. They kept two Bibles for themselves. When the applicant insisted that they return his Bible, B.M. threatened to put him in his car and dump him in the Rioni River. 30.  On 2 October 2000 the applicants lodged an administrative complaint with the Kutaisi Court against the Ministry of the Interior, the chief and deputy chief of Kutaisi police and police officers B.M. and E.K. Claiming that their rights guaranteed by Article 19 of the Constitution and Articles 9 and 14 of the Convention had been breached, they asked that the Ministry of the Interior issue a public apology and bring disciplinary proceedings against two of its staff who, in their opinion, had failed to comply with their professional duties, as provided for in the Police Act. The applicants also asked to be compensated in respect of pecuniary and non‑pecuniary damage, in application of Article 1005 § 1 of the Civil Code. 31.  Questioned by the court, the applicants confirmed the above‑mentioned events. Mr Gabunia described in detail the place where he had met the two police officers, and stated that they had been in uniform and wore badges. He also provided information about the make, colour and registration number of their car. Mr Dzamukov provided the registration number of the car in which he had been taken to the police station. His wife gave the registration number of the vehicle in which E.Ch. had followed her., while Ms L.K., a witness to the incident at the police station, confirmed that she had seen Mr Dzamukov there. E.Ch. denied the allegations, stating that he had been on leave on the day in question and had not been in Kutaisi. B.M. and E.K. also denied the allegations, claiming that they were seeing the applicants for the first time. 32.  On 7 June 2002 the applicants’ complaint was dismissed as ill‑founded. The court pointed to the rights guaranteed by Article 19 of the Constitution and noted that, historically, no religion had ever been persecuted in Georgia. It further noted the following:
“It is also well known that many of Jehovah’s Witnesses blatantly violate the requirements of Article 19 § 3 of the Constitution and frequently impose their opinion and belief on others, thus violating their rights.”
Then the court set aside the three witness statements in favour of the applicants on the ground that those people had not been eyewitnesses. In addition, it noted the following:
“The first two witnesses are Jehovah’s Witnesses and the applicants’ friends, and they have an interest in having the case decided in the applicants’ favour.”
As the applicants had not submitted any other valid evidence (medical reports, torn-up religious literature, or other items), their allegations were held to be ill-founded. Lastly, the court noted that Mr Dzamukov had waited one year before adding E.Ch.’s name to his complaint. 33.  The applicants lodged an appeal, stating that submitting the destroyed religious literature to the court would have had no valid evidential value, since it would not have sufficed to prove that the police officers concerned had torn up the literature on the date in question. The applicants also explained that it had not been necessary to obtain a medical report, given that they had not received serious wounds or injuries. That did not, however, alter the fact that they had been struck by the police officers. Furthermore, in their opinion, the insults directed against them on account of their faith had been sufficient to establish that the police officers had been negligent in carrying out their professional duties. 34.  On 18 December 2002 the Kutaisi District Court dismissed the applicants’ appeal on the same grounds as the first-instance court. In particular, it took account of the fact that the police officers had denied the allegations and that the applicants had suffered no physical injuries. It concluded that, in the absence of sufficient evidence to the contrary, there had been no damage to the applicants’ dignity or any infringement of their right to freedom of religion, which ruled out the application of Article 1005 § 1 of the Civil Code and the granting of compensation. 35.  According to the applicants, the appeal court took into consideration an oral statement by E.K., who had claimed that he did not recognise a white car with the registration number DAQ 492, which Mr Dzamukov had nonetheless identified as being that in which the two police officers had been patrolling at the time of the incident in question. After the hearing, however, E.K. had left in that same vehicle, which had been parked in front of the regional court. The applicants took a photograph, and attached it to their appeal on points of law. They complained, in particular, that E.K.’s denial had been accepted by the first-instance court and on appeal without any supporting evidence. 36.  After postponing the hearing several times on account of the absence of the defending parties, the Supreme Court examined the applicants’ appeal on points of law in written proceedings, and dismissed it on 17 October 2003. It criticised the applicants for failing to bring criminal proceedings against the police officers. The Supreme Court stated that acknowledging that the police officers had failed in their professional obligations in the impugned manner (attacking and assaulting the applicants) would be equivalent to recognising, in the context of administrative proceedings, their criminal guilt, which would be contrary to the law. At the same time, if the accusation against the police officers had indeed been confirmed in criminal proceedings, the applicants would have been entitled to compensation, and also to a public apology. 37.  The Supreme Court’s judgment was served on the applicants on 27 November 2003. 38.  This part of the application concerns Mr Boris Gogoladze, Mrs Anastasia Tvaradze and Mrs Madona Kapanadze (applicants nos. 8-10 respectively). 39.  On 1 April 2001 a group of Jehovah’s Witnesses was returning from a religious meeting in the village of Dviri, Borjomi region. At a bus stop they met Mr S.Kh., the deputy governor of the town of Borjomi, Mr J.B., the governor of Dviri, and about fifteen local residents. One of the latter, assaulted Mr Gogoladze, wounding him on the cheek, and tore a bag containing religious literature and other personal effects from his hands. Then he struck the two applicants on the head with a shoulder strap ripped from Mr Gogoladze’s bag. The two governors, who watched the attack, directed insults at the victims. In the end they asked the assailant to desist and left with him (see Begheluri and Others, cited above, § 56). 40.  On 30 April 2001 the applicants filed an administrative complaint with the Borjomi Court against the Borjomi regional administration, the local police chief and the two governors concerned. The applicants asked that the officials apologise publicly and that the regional administration take disciplinary proceedings against them. They also claimed compensation in respect of non-pecuniary damage (Article 1005 § 1 of the Civil Code). 41.  On 17 September 2001 the court dismissed the applicants’ complaint on the grounds that the governors had not been under a legal obligation to ensure the maintenance of public order. It concluded that it had not been shown that they themselves had organised the attack in question or had personally attacked or assaulted the applicants. The decision was upheld on appeal by the Tbilisi Regional Court on 25 July 2003. The regional court held that ensuring the maintenance of public order did not amount to a “pressing obligation” on the governors. 42.  On 13 February 2004 the Supreme Court dismissed an appeal on points of law by the applicants, using the same grounds as the regional court. 43.  This part of the application concerns Mr Jimcher Gogelashvili, George Kurua and Omar Chubinidze (applicants nos. 11-13). 44.  On 27 March 2001 a group of Orthodox religious extremists led by Mr P. Bluashvili, a leader of the Jvari movement, burst into Mr Gogelashvili’s flat, where a congregation of Jehovah’s Witnesses was holding a meeting. The assailants ordered the Jehovah’s Witnesses, whom they described as Christ-insulters and Satanists, to hand over their religious literature and to leave the premises. The Jehovah’s Witnesses protested, referring to provisions of the Constitution, but were nonetheless obliged to comply. Mr Kurua was insulted by Mr Bluashvili, who then pulled on his tie to strangle him. 45.  After confiscating religious literature from the people present in the flat, the attackers opened the cupboards and took out similar literature, first throwing it on the floor, and then out of the window. The benches used by the Jehovah’s Witnesses during the meeting were also thrown out of the window. 46.  The attack was recorded on video. Moreover, an individual wearing civilian clothes, who, according to the applicants, was a police officer named L. Gogolauri, appears on the screen. He stands in the courtyard, observes the Jehovah’s Witnesses being chased from the flat and allows a child to leave, carrying a bench that has been thrown from a window. 47.  The applicants assessed the pecuniary damage caused by the attack in question at about EUR 760 (audio-visual equipment, religious literature, benches, and other items). They submitted an audit report, dated 23 May 2001, in support of their claim. 48.  On the day after the above incident the same group of attackers publicly burned the religious literature taken from Mr Gogelashvili’s home at the main market in Rustavi. That scene was also captured in the above‑mentioned recording. According to the applicants, the police officers patrolling the market did not react. 49.  On 30 April 2001 the Jehovah’s Witnesses who had been victims of the attack, including the three applicants named above, as well as the representation of the Pennsylvania Watch Tower in Georgia and the Union of Jehovah’s Witnesses, filed an administrative complaint with the Mtatsminda-Krtsanisi Court against the Ministry of the Interior, Mr Th.A., the chief of Rustavi police, Mr L.G., the head of the police station involved in the case, and Mr K.Z., a police officer. They alleged that the officials had failed in their professional obligations and had breached Articles 8-11, 13 and 14 of the Convention. 50.  In particular, the applicants asked that the Ministry of the Interior issue a public apology, in accordance with section 8(37) of the Police Act, and bring disciplinary proceedings against the above-named police officers. The applicants also claimed compensation in respect of pecuniary and non-pecuniary damage, in application of Article 1005 § 1 of the Civil Code, and asked that a directive be sent to all police stations in the country, stating that the rights of Jehovah’s Witnesses were to be respected. Drawing the court’s attention to the spread of violence against Jehovah’s Witnesses throughout the country, they asked that it rule on their case in accordance with the law, as, in their opinion, a proper judicial decision could help to halt such violence. 51.  The court heard the three applicants and other Jehovah’s Witnesses who had been victims of the attack. They all complained about the passivity of the police officers present at the scene. Mr Gogelashvili stated that when the attack had begun, he had gone to a police station located about a hundred metres from his building. After some delay, two police officers had accompanied him back to the scene. He had seen that books and furniture were being thrown out of the window. The police officers had taken no action. He had then run up the stairs to his flat to retrieve some money that he kept in a cupboard. He had found that the cupboard door had been broken and that EUR 130 had been stolen. Mr Gogelashvili complained that the police officers had not intervened to prevent the violation of his private property or to protect the victims. 52.  Mr Kurua stated that immediately after leaving the flat on the attackers’ orders, he had gone to the police station, where he had learned that the alarm had already been raised. He had asked that police officers return with him, in order to “intimidate” the attackers. The officers had refused to accompany him. 53.  Mr Chubinidze stated that during the attack he had telephoned the police from the flat, but that the person on the other end of the telephone had hung up immediately. He had then been obliged to comply with the orders to leave the flat. He had managed to grab his bag back from an attacker who had taken it. 54.  On 10 May 2002 the court decided to strike the case out of its list of cases, on the basis of a letter, allegedly signed by the applicants, withdrawing their complaint. On 5 June 2002 they lodged an appeal, stating that the signatures on the letter in question had been forged and that they had never withdrawn their complaint. On 16 December 2002 the appeal court overturned the decision of 10 May 2002 and proceedings resumed. 55.  Questioned by the Mtatsminda-Krtsanisi District Court, a representative of the Ministry of the Interior argued that it had not been established that the police had been present at the scene and asked that the applicants’ complaint be dismissed. The police officers themselves did not attend the hearings on two consecutive dates. Obliged to rule in their absence, on 16 July 2003 the court dismissed the complaint as ill-founded. It considered it established that the applicants had been attacked by a group of individuals led by Mr Bluashvili on 27 March 2001. It considered, however, that the applicants had not demonstrated that the police had been present at the scene or that they had watched passively as acts had been committed against property and the applicants’ rights to freedom of religion. Accordingly, it had not been established that the police officers had failed to perform their professional duties within the meaning of Article 1005 § 1 of the Civil Code. Nonetheless, in the same decision, the court acknowledged that, after having been informed of the attack, the police officers had gone to the scene, which had resulted in a decision to place the attackers under investigation. According to the court, in the context of the latter criminal proceedings, it would be lawful for the applicants to submit a claim for compensation against the individuals who had infringed their rights. The decision made no reference to the burning of literature at Rustavi market. 56.  On 25 June 2004 the Tbilisi Regional Court upheld the first-instance judgment, repeating the grounds used in it. Neither the representative of the Ministry of the Interior nor the police officers appeared. 57.  On 2 March 2005 the Supreme Court dismissed an appeal on points of law lodged by the applicants. The court concluded that the fact of a breach of duty by the police, either intentionally or by negligence, had not been proven.


5.  The applicant company is a limited liability company based in Vienna. It is the owner and publisher of the weekly news magazine Profil. 6.  Until 2007 the Land of Carinthia (Land Kärnten) owned almost 50% of the shares of Hypo Alpe-Adria Bank. From 1996 until 2006 a man called Mr. Rauscher was in charge of the treasury department of the bank. In that capacity he was responsible for authorising foreign currency transactions. He was answerable only to the bank’s executive board, which consisted of three members. While Mr. Rauscher was head of the treasury department, his father, who had been a regional government member responsible for finance until 1996, was also on the bank’s supervisory board. The father had that position until 2003. 7.  At the beginning of 2006 the bank’s executive board informed the Financial Market Authority (Finanzmarktaufsicht, “the FMA”) that the bank had financial difficulties. On 31 March 2006 the executive board held a meeting with the executive board of the FMA and informed it that the bank had made a loss of several hundred million euros in 2004. Mr Kulterer, the chief executive of the bank, informed the FMA that the treasury department had gone over its internal transaction limit of 100 million euros (EUR) by EUR 47 million. 8.  Between 1 and 6 April 2006 a number of daily newspapers published reports on the investigation and mentioned Mr Rauscher by name as responsible for the speculative transactions in question. Among those articles was one by newspaper Der Standard published on 4 April 2006 (see Standard Verlags GmbH v. Austria (no. 3), no. 34702/07, §§ 6-17, 10 January 2012). 9.  On 5 April 2006 the FMA filed criminal information (Strafanzeige) about offences committed in relation to the business of Hypo Alpe-Adria Bank against the three members of the executive board and Mr Rauscher, accusing them of embezzlement by investing money entrusted to the bank contrary to the instructions of the executive board. In substance, the FMA alleged that Mr Rauscher had authorised highly speculative transactions with foreign currency derivatives (swaps), disregarding instructions by the executive board. 10.  In its issue of 10 April 2006, the applicant company published an article on the investigations into the heavy losses incurred by Hypo Alpe‑Adria Bank. The front cover of Profil had the words: “Kärntner Hypo‑Affäre – Wie viel wusste Haider?” (“Carinthian Hypo affair - How much did Haider know?”). 11.  The article, headlined “Schwere Hypothek” (“Heavy Mortgage”), ran to nine pages. It reported on the enormous loss of EUR 328 million incurred by Hypo Alpe-Adria Bank in 2004, the question of who was responsible for the damage and whether there were failings in the bank’s risk management. It accused the bank’s executive board of failing to give information to the supervisory board, the bank’s accountants and the FMA, and of trying instead to hush up the losses by manipulating the balance sheets for 2004, which meant that the full extent of the damage was only discovered by external accountants when examining the balance sheets for 2005. The accountants had then informed the FMA. Furthermore, the article featured an interview with Mr Kulterer, confronting him with those accusations. Mr Kulterer was quoted as accusing Mr Rauscher of having disregarded internal guidelines in his foreign currency transactions.
The relevant passages of the article read as follows:
“By the time the warning system was triggered the disaster had long since run its course. On Wednesday 17 November 2004 the risk management and control software programme in the head offices of Hypo Alpe-Adria Bank in Klagenfurt showed, in all the relevant departments of the bank, exactly the kind of figures which bring managers of credit institutions out in a cold sweat: staggering losses on investment operations. In the treasury division, which manages the bank’s liquidity and for that purpose trades, among other things, in interest rates and currencies, there was a shortfall of more than 100 million euros. ‘At that point we immediately called a halt’ said CEO Wolfgang Kulterer. However, as several similar operations were in progress simultaneously, it was impossible ‘to close the floodgates at once’. When that was eventually done, the losses stood at 328 million euros, several times higher than the self-imposed threshold of 100 million.
Treasury manager Christian Rauscher, who was responsible for authorising the transactions, was immediately told to clear his desk. (This son of the former SPÖ regional finance chief Max Rauscher was not available for comment). However, the consequences of the orgy of speculation, which lasted just two weeks, continue to preoccupy the bank’s management. And they are not the only ones: in particular, the manner in which Kulterer and his colleagues dealt with the loss-making transactions has also come to the attention of the authorities in recent days. Last Wednesday the financial markets supervisory authority (the FMA) even saw fit to lodge a criminal complaint against the entire executive board. Rauscher is the object of a preliminary enquiries [Vorerhebungen] (file no. 3 St 79/06x) before the Klagenfurt Regional Court on suspicion of embezzlement. The executive board faces charges of misrepresenting the end-of-year accounts, in other words, falsifying the balance sheets.
...
The transactions in question were all performed between 20 September and 5 October 2004. According to Hypo boss Kulterer, Rauscher – in breach of internal regulations – gambled, by means of so-called swaps, on the occurrence of a highly explosive combination of two trends on the financial markets: on the one hand a fall in interest rates and on the other a rise in the dollar and the yen against the euro. A few weeks later, on 17 November 2004, the perfect storm hit.
...
Lack of controls. Rapid rates of growth motivate not just the boss, but also the employees – including the now ex-treasury manager Christian Rauscher. According to inside sources, Rauscher may have set the stakes so high precisely because he wanted to make his mark as a candidate for the vacant post of department manager. After all, high stakes mean correspondingly high profits if all goes according to plan. A marked surplus on his account would undoubtedly have boosted his chances of securing the post.” 12.  The article continued with an overview of the history of Hypo Alpe‑Adria Bank, which had gone from being a regional bank to an international investment bank in the space of fifteen years. The article looked at previous business transactions which had resulted in risks and losses for the bank and the conduct of the executive board. Finally, the article examined the relationship between the bank’s management and local politicians and asked how much Mr Haider, the then regional governor of Carinthia, knew of the losses, and when he had found out about them. It noted that the Land of Carinthia owned 49.4% of the bank and that funds from the bank had financed a number of political projects in the region, in particular Mr Haider’s Future Fund (Zukunftsfonds), designed to fund infrastructure and other large-scale projects. 13.  On 14 June 2006 Mr Rauscher brought proceedings against the applicant company for disclosing his identity in breach of section 7a of the Media Act (Mediengesetz). He submitted that he was not a public figure and that his position at the bank had not been such as to justify the disclosure of his name. He asserted that when authorising the transactions at issue he had acted in accordance with his instructions and with the approval of his superiors. The publication of his name had had negative repercussions on his professional advancement and had not been justified by any public interest. 14.  On 19 August 2008 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) dismissed Mr Rauscher’s action. It found that the following facts had been established: the article had provided a comprehensive report on the losses of Hypo Alpe-Adria Bank. At the time the article had been published, the Land of Carinthia had owned 49.4% of the bank. The claimant’s father had been a regional government member responsible for finances and had also been on the bank’s supervisory board until April 2003. The claimant had been the head of the bank’s treasury department since 1999. He had not been active in politics nor had he been in the public eye in connection with his professional activity. The Regional Court noted that the task of a bank’s treasury department was to carry out liquidity and finance planning for the bank. Hypo Alpe-Adria’s treasury department had been directly answerable to the executive board. The transactions which had subsequently led to such enormous losses had been carried out between the end of September and the beginning of October 2004 and the claimant had been the main person in charge. On 5 April 2006 the FMA had sent information to the Klagenfurt public prosecutor’s office on three members of the executive board, who were suspected of manipulating the bank’s balance sheets, and on the claimant who was suspected of embezzlement for carrying out unauthorised foreign currency transactions. Following receipt of that information the public prosecutor’s office had started preliminary enquiries. From 24 May 2006 preliminary investigations (Voruntersuchung) had been conducted by the Regional Court. Criminal proceedings against the claimant had been discontinued in 2008. After accusations against the claimant had been published in various media, his employment contract had been terminated. He had not been able to find a similar position in another bank. 15.  The Regional Court noted that section 7a (1) of the Media Act required a weighing of the claimant’s interest in the protection of his identity and the public interest in its disclosure. As a rule, adults who were suspected of having committed a crime were only protected against the disclosure of their identity if such disclosure disproportionately affected their professional advancement. 16.  It observed that at the material time the Land of Carinthia owned almost 50% of Hypo Alpe-Adria Bank. That fact alone demonstrated an increased public interest as the taxpayer had a right to know who was responsible for the bank’s losses. The applicant had been a senior employee at the bank, and had been suspected of embezzlement. Although the criminal proceedings had still been at an early stage, the Financial Market Authority, the competent controlling authority, had laid criminal information against the claimant. Moreover, the chief executive of the bank, Mr Kulterer, had levelled similar accusations against him. Having regard to the function of the press as a “public watchdog” and the circumstances of the case, the Regional Court found that the public interest of obtaining information outweighed the claimant’s interest in not having his name disclosed. 17.  On 20 April 2009 the Vienna Court of Appeal (Oberlandesgericht) granted an appeal by the claimant, declared that the disclosure of his identity in the article had violated his rights and ordered the applicant company to pay him EUR 3,000 euros in compensation and to reimburse his procedural costs. 18.  The Court of Appeal found that the Regional Court’s conclusion had been wrong after it had weighed the conflicting interests at issue. It shared the view of the Regional Court that there was a public interest in knowing who was responsible for Hypo Alpe-Adria Bank’s losses due to the fact that the Land owned 50% of the bank. However, the article should have confined itself to mentioning the head of the bank’s treasury department without disclosing his name. The public interest in reporting on the criminal offences at issue had not in itself been sufficient to justify disclosing the claimant’s identity. The fact that the claimant had been answerable to the executive board, although he had an important position in the bank, and that the criminal proceedings against him had been at an early stage, meant that the claimant’s interest in protecting his identity outweighed the public interest in the disclosure of his name. 19.  The applicant company lodged an application under Article 363a of the Code of Criminal Procedure (Strafprozeßordnung) with the Supreme Court (Oberster Gerichtshof). It submitted in particular that the Vienna Court of Appeal’s judgment had violated Article 10 of the Convention as there had been an overriding public interest in what it had reported, including the disclosure of Mr Rauscher’s identity. 20.  On 17 March 2010 the Supreme Court dismissed the applicant company’s application. It examined in detail the reasons given by the Court of Appeal. Referring to the Court’s findings in “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 2) ((dec.), no. 62746/00, 14 December 2002), the Supreme Court found that the appeal court had correctly weighed the conflicting interests of the claimant under Article 8 on the one hand and of the applicant company under Article 10 on the other, especially because of the early stage of the criminal proceedings against the claimant. 21.  The Supreme Court’s judgment was served on the applicant company’s counsel on 15 April 2010.


5.  The applicant was born in 1951 and lives in Waldegg, Austria. 6.  On 28 September 1994 the applicant initiated civil proceedings requesting the division of a certain estate. 7.  On 5 January 2009 the Ivanjica Municipal Court suspended the said proceedings until conclusion of another civil case. 8.  It would appear that the said civil proceedings are still pending. 9.  On 23 June 2011 the Constitutional Court found a breach of the applicant’s right to a hearing within a reasonable time and ordered the speeding up of the impugned proceedings. The court, additionally, declared that the applicant was entitled to the non-pecuniary damages sought, in accordance with Article 90 of the Constitutional Court Act (see paragraph 13, Article 90, below). 10.   It seems that, the applicant contacted the Commission for Compensation on 11 December 2011 and requested the payment of the compensation awarded, but apparently received no response.


5.  The applicant is a non-governmental organisation that publishes Orlovskaya Iskra, a newspaper in the Orel Region. As of March 2003, the Orel branch of the Communist Party of the Russian Federation and the Orel branch of the People’s Patriotic Union of Russia, a nationwide movement, were listed as the applicant organisation’s founders. This information was specified on the front page of the newspaper. 6.  Pursuant to the Articles of incorporation, the founders were in charge of setting up an editorial board and determining the editorial policy; in the case of disagreement on the editorial policy the matter was to be resolved by a meeting of the founders’ representatives. 7.  During the election campaign for the State Duma, the lower chamber of Parliament, on 2 December 2007, the applicant organisation expressed to the Electoral Committee of the Orel Region (see paragraph 41 below) its intention to accept proposals for publication for a fee and, as required by law, published the fees applicable to the publications on behalf of political parties (30,000 roubles (RUB) per page). The applicant organisation specified that the above fee “was not applicable to the newspaper’s founder”. The applicant organisation signed a contract with the Communist Party for this purpose for publications on 7, 14, 21 and 28 November 2007. The contract mentioned a fee of RUB 30,000 per page; the total amount of the contract was RUB 300,000 for ten pages. Some of the publications in the applicant organisation’s newspaper on these dates did mention the Party’s sponsorship, others did not (see paragraph 8 below). 8.  Apart from the publications mentioned above, on 7 and 14 November 2007 the applicant organisation’s newspaper also published, in the same weekly issues, two articles written by its staff correspondent, Ms O. Both articles were critical of Mr Stroyev, the then governor of the Orel Region and the former Chairman of the Federation Council (the upper chamber of the Russian Parliament). Governor Stroyev was a candidate at those elections: he was no. 1 on the regional list of United Russia (Единая Россия), a political party aligned with President Putin and dominant in the State Duma. The Communist Party was one of the main opposition parties at those elections. 9.  The first article was entitled ‘Hatred, Stroyev style’. It can be summarised as follows. It described Governor Stroyev as a person consumed by hatred towards people who oppose him. The journalist referred to the decision of the governor to wind up a publicly owned newspaper, Gorod Orel. According to journalist O., that decision was a direct consequence of a conflict between Mr Stroyev and the newspaper’s former editor-in-chief who kept criticising Stroyev’s policies. The speaker of the municipal council, who was politically weak owing to a corruption scandal involving municipal land, was unable to oppose the decision of the governor to close the newspaper. Most of the regional journalists under Stroyev became servile; those few who, like the editor-in-chief of Gorod Orel, remained independent and refused to flatter Mr Stroyev, were subjected to pressure and fell victim to Mr Stroyev’s hatred. The article then turned to the story of two deputies of the regional legislature. They were elected as members of the Communist Party and were originally in opposition to Mr Stroyev, but later they both became members of United Russia. One of them was a businessman. The author suspected that the first deputy had changed political sides because of very serious pressure exerted by the Stroyev administration on local businessmen. The second deputy was a history professor. The article suggested that his decision to leave the Communist Party was also forced. The journalist ironically supposed that in fact Mr Stroyev did not want United Russia to win the elections, since he was doing everything to make the electorate angry with the ruling party. In 2006 the town population voted in large numbers for the Communist Party, which was in fact a vote of disapproval of Mr Stroyev’s policies. However, the journalist supposed that Mr Stroyev’s personal interests always prevailed over those of the United Russia party. The town mayor tried to protect himself by joining United Russia, but this was a weak defence against Mr Stroyev’s hatred. The only people Mr Stroyev loved and defended were his own relatives and protégés. The article cited the example of Mr Stroyev’s nephew, a businessman suspected of abuse of public funds and fraud. His case was still pending; the article suggested that regional law-enforcement agencies being discouraged from pursuing the investigation actively. The article then turned to the dismissal of the head of the regional public Audit Chamber, who reported on abuses of funds allocated for road maintenance. The newly appointed head of the Audit Chamber, who was Mr Stroyev’s man, came to the opposite conclusion, namely that the manipulation of the road funds had been perfectly in order. Nevertheless, the money had been spent; as a result, the federal authorities had had to allocate additional funds for road maintenance in the Orel Region. Mr Stroyev tried to get credit for that funding, but it was not United Russia’s money that had been used, as they claimed, but taxpayers’money. In the opinion of the author, by trying to present the whole situation as his personal achievement Mr Stroyev was making a fool of President Putin and of the population of the Orel Region.
The article had a long post-scriptum. It cited the European Court’s findings in the case of Chemodurov v. Russia (no. 72683/01, judgment of 31 July 2007). That case concerned a defamation claim lodged by a governor of another Russian region against a journalist of a local newspaper. The case ended with a finding of a violation of Article 10 of the Convention by the Court. The author alluded to similarities between her criticism of Mr Stroyev’s policies and the situation in the Chemodurov case. 10.  The second article was entitled ‘Stroyev sues people: people sue Stroyev’. It also concerned several topics. It opened with the statement that the electorate of Orel Region did not trust the authorities and at the 2006 and 2007 elections preferred to support the Communist Party. Next, it touched upon the story of Ms Ch., a former forest inspector who was dismissed from her job as a result of a reorganisation of the forestry authority. Forty-two other workers of the forest authority also lost their jobs. The article alleged that the reform of the forest authorities was initiated by Governor Stroyev in breach of federal legislation. It suggested that the reform was driven by the need to facilitate industrial tree-cutting. Ms Ch. sued the regional authorities, and at the relevant time the proceedings were pending. However, in the opinion of the journalist, there was little hope for impartiality on the part of the regional courts. The article then turned to the case of Ms G., who had made statements critical of the governor during a public rally and had been prosecuted for slander. The article then analysed recent public statements of the governor, who had criticised the policy lines of former President Yeltsin, whereas he himself during that period had been Chairman of the Federation Council, and therefore the second most important statesman in the country. According to the journalist, the proceedings in the case of Mr G. were adjourned, probably because Governor Stroyev wanted to avoid a scandal before the date of elections. The article closed with the suggestion that President Putin should not have associated himself such controversial figures as Governor Stroyev. 11.  On 17 November 2007 the Working Group on Informational Disputes of the regional Electoral Committee examined both articles. The Working Group concluded that the articles contained elements of electoral campaigning (агитация). The Working Group concluded as follows:
The publications contained “negative, purposeful, systematically published information about a member of the High Political Council of the United Russia political party ... Mr E. Stroyev. The above-mentioned publications have created a negative attitude on the part of the voters towards ... United Russia. Although the text of the articles does not call for people to vote for or against United Russia, all the electorate understand that this is in fact counter-campaigning [against Mr Stroyev]”. The publications “did not correspond to the current information policy of the organisations editing mass media”, which (the policy) was “aimed at informing the voters about the development of the electoral campaign ... [and] about the political parties participating in it”. Those articles, in the opinion of the Electoral Committee, fell “outside the information space created by the political parties during the ongoing electoral campaign”. The publication of those articles was not paid for from the official campaign fund of any party participating in the campaign, contrary to section 52 § 6 of the Electoral Rights Act of 2002. 12.  Consequently, in the opinion of the Electoral Committee, publication of those articles amounted to a breach of electoral law punishable by a fine in accordance with Article 5.5 of the Federal Code of Administrative Offences (CAO). 13.  The official of the Electoral Committee compiled an administrative offence record against the applicant organisation, referring to the legislative provisions defining “campaigning” (see paragraph 40 below):
“[The applicant organisation] has committed an administrative offence: publications on 7 and 14 November 2007 containing elements of election campaigning as defined in sections 10 and 55 § 1(6) of the State Duma Deputies Elections Act” ...
Liability for this offence is prescribed under: Article 5.5 § 1 of the CAO.” 14.  The case was then submitted to a justice of the peace. On 29 November 2007 the justice of the peace examined the case. At the hearing the editor-in-chief of the newspaper explained that both articles were informational in essence and were not a part of the election campaign. They reflected the author’s opinion of Governor Stroyev. Consequently, there was no need for those articles to be paid for from any candidate’s campaign fund. 15.  The judge held that, according to the State Duma Deputies Elections Act of 2005, taken in conjunction with the Electoral Rights Act, “election campaigning” meant publications where information about one of the candidates prevailed and was combined with negative comment about him or her. Having studied the impugned articles the judge agreed with the Electoral Committee that they primarily concerned candidate Stroyev, and secondly were negative. The judge concluded that those articles were in substance election “campaigning”. Such material should either have been paid for from the campaign fund of one of the candidates or have been published free of charge; in any event, the newspaper had been required to indicate who had sponsored the publication. No such mention had been made in the articles. Consequently, the publication of both articles amounted to a breach of the electoral law. The applicant organisation was therefore found guilty of the administrative offence described in Article 5.5 § 1 of the Code of Administrative Offences of 2001 (hereinafter “the CAO”). The justice of the peace ordered the applicant organisation to pay a fine of 35,000 roubles (RUB, equivalent to 1,000 euros (EUR) at the time). 16.  The applicant organisation appealed to the Zheleznodorozhny District Court of Orel. On 27 December 2007 it heard the applicant organisation’s representatives and rejected the appeal. The relevant extract from the judgment reads as follows:
“Having regard to the fact that the publication of the above articles took place during an election campaign period, the judge considers that the above-mentioned articles contained elements of election campaigning, and therefore could be described as campaign literature. This conclusion is supported by the words of the representatives of the newspaper ... who acknowledged that the articles contained criticism of Governor Stroyev ...” 17.  The appeal decision entered into legal force on the same date. 18.  On unspecified dates the applicant organisation received a copy of this decision and lodged a supervisory-review application with the President of the Orel Regional Court. The scope of that application remains unclear. 19.  Without holding a hearing, on 29 January 2008 the acting president of the court issued a decision dismissing the application. The reasoning of the decision of the acting president was identical to that of the lower courts. On an unspecified date the applicant organisation received a copy of the acting president’s decision. 20.  The applicant organisation then lodged a supervisory-review application with the President of the Supreme Court of Russia. The scope of this application remains unclear. On 19 June 2008 the Vice-President dismissed it. On an unspecified date the applicant organisation received a copy of this decision. 21.  On an unspecified date the applicant organisation introduced an individual application before the Constitutional Court of Russia, arguing that the impugned provisions of the Electoral Rights Act and the State Duma Deputies Election Act ran counter to freedom of the press. The Acts de facto regarded any critical material published during a pre-election period as “campaigning”, and imposed additional requirements on such publications. 22.  By a letter of 23 October 2008 the Registry of the Constitutional Court informed the applicant organisation that its application was not allowed because, in substance, it was merely challenging the factual and legal findings made by the courts in the administrative offence case. 23.  On an unspecified date the applicant organisation resubmitted its application to the Constitutional Court. On 25 December 2008 a panel of judges of the Constitutional Court issued a decision (определение) refusing examination of the application. It held as follows:
“In its ruling of 30 October 2003 the Constitutional Court made the following statement of principle concerning a distinction between information for voters and pre-election campaigning. To protect the right to free elections, freedom of expression on the part of the mass media may be restricted, provided that the balance of constitutional values has been respected ...
[The Electoral Rights Act] distinguishes between information for voters appearing in the mass media and pre-election campaigning by them. Both information and campaigning can influence voters to make certain choices, thus the obvious and only criterion to distinguish between them would be the existence of a particular aim, namely to incline voters to support or oppose a certain candidate ... Without such an aim in mind there would be no dividing line between information and campaigning, to the effect that all information would amount to campaigning. This would go against the constitutional guarantees of freedom of information and freedom of expression ...
It is incumbent on the courts and other authorities to establish that there is a campaigning aim in each case ... Thus, in view of the above statement of principle, the impugned legislative provisions cannot be considered to have violated the applicant organisation’s rights or freedoms ... Establishment of the specific circumstances (whether or not the information provided by the applicant organisation concerned the electoral campaign rather than the reporting on the candidate’s professional activity as a governor) are beyond of the Constitutional Court’s competence ...”