CASE OF GROSS v.

SWITZERLAND
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
1. The applicant complained that the Swiss authorities, by depriving her of the possibility of obtaining a
lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her
life would end. She relied on Article 8 of the Convention, which reads as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.
2. The Government contested that argument and invited the Court to declare the present complaint
inadmissible as being manifestly ill-founded.
A. Admissibility
3. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35
3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The applicants submissions
4. The applicant submitted that the fact that the required dose of sodium pentobarbital was only available
on medical prescription, combined with the fact that medical practitioners refused to issue such a
prescription to a person, who, like herself, was not suffering from any terminal illness, had rendered her
right to decide by what means and at what point her life would end theoretical and illusory. She considered
that ingesting sodium pentobarbital was the only dignified, certain and pain-free method of committing
suicide. She further pointed out that she had, through her counsel, unsuccessfully sought authorisation to
obtain a lethal dose of cyanide or a firearm in order to end her life.
5. The applicant further considered that the State was under a general obligation to provide the means by
which its citizens might make use of their Convention Rights. She pointed out that she was not in a
position to fulfil the Federal Supreme Courts requirement of long-term supervision by a medical
practitioner, as Swiss psychiatrists, under pressure from their professional governing body, refused to
take part in treatments which had the ultimate aim of the patients death or which, at the least, accepted the
possibility of this outcome.
6. The Federal Supreme Court had, furthermore, refused to consider the applicants argument that both
domestic law and the international Convention on Psychotropic Substances allowed for an exemption
from the requirement of a medical prescription.
7. The Supreme Court, had, furthermore, failed to establish a concrete risk of abuse. No concrete abuse
case had ever been alleged in the course of the public debate on assisted suicide. If the required substance
was given to the applicant via an assisted-suicide association, any possible risk to the health of others
could be ruled out. On the other hand, having regard to the statistics on failed suicide attempts in

Switzerland, the applicant herself ran a much higher risk of her own health being damaged by a failed
suicide attempt.
8. The Supreme Courts judgment had been self-contradictory, in that it had relied on the fact that the
applicant did not fulfil the requirements of the medical ethics guidelines on the care of patients at the end
of life. By relying on these guidelines, the Supreme Court had presupposed that the applicants suicide had
to be justified from a medical point of view. This point of view was incompatible with the assumption that
any person who was able to form his or her judgment had the right to decide on the time and manner of
their own death. Accordingly, there was no need for any medical justification. The applicant further
pointed out that the medical ethics guidelines did not have the formal quality of law and had not been
adopted through the democratic process. Furthermore, they had not been applicable in the instant case,
because they presupposed that the end of a patients life was near.
4. Assessment by the Court
9. The Court reiterates that the notion of private life within the meaning of Article 8 of the Convention
is a broad concept, which encompasses, inter alia, the right to personal autonomy and personal
development. Without in any way negating the principle of the sanctity of life protected under the
Convention, the Court has considered that, in an era of growing medical sophistication combined with
longer life expectancies, many people are concerned that they should not be forced to linger on in old age
or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and
personal identity. In the Pretty case, the Court was not prepared to exclude that preventing the applicant
by law from exercising her choice to avoid what she considered would be an undignified and distressing
end to her life constituted an interference with her right to respect for her private life as guaranteed under
Article 8 1 of the Convention.
10. In the Haas case, the Court further developed this case-law by acknowledging that an individuals
right to decide the way in which and at which point his or her life should end, provided that he or she was
in a position to freely form his or her own judgment and to act accordingly, was one of the aspects of the
right to respect for private life within the meaning of Article 8 of the Convention.
11. Having regard to the above, the Court considers that the applicants wish to be provided with a dose of
sodium pentobarbital allowing her to end her life falls within the scope of her right to respect for her
private life under Article 8 of the Convention.
12. The Court further reiterates that the essential object of Article 8 is to protect the individual against
arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be
justified in terms of the second paragraph, namely as being in accordance with the law and necessary
in a democratic society for one or more of the legitimate aims listed therein. According to the Courts
settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need
and in particular that it is proportionate to one of the legitimate aims pursued by the authorities (see, for
example, A, B and C, cited above, 229)
13. In addition, there may also be positive obligations inherent in an effective respect for private life.
These obligations may even involve the adoption of measures designed to secure respect for private life in
the sphere of relations between individuals, including both the provision of a regulatory framework of
adjudicatory and enforcement machinery protecting individuals rights and the implementation, where
appropriate, of specific measures (see, among other authorities, X and Y v. the Netherlands, 26 March
1985, 23, Series A no. 91, and Tysic v. Poland, no. 5410/03, 110, ECHR 2007-I).
14. In the Haas case, the Court considered that it was appropriate to examine the applicants request to
obtain access to sodium pentobarbital without a medical prescription from the perspective of a positive
obligation on the State to take the necessary measures to permit a dignified suicide (see Haas, cited above,

 53). In contrast, the Court considers that the instant case primarily raises the question whether the State
had failed to provide sufficient guidelines defining if and, in the case of the affirmative, under which
circumstances medical practitioners were authorised to issue a medical prescription to a person in the
applicants condition.
15. Turning to the circumstances of the instant case, the Court observes at the outset that in Switzerland,
pursuant to Article 115 of the Criminal Code, inciting and assisting suicide are punishable only where the
perpetrator of such acts is driven to commit them by selfish motives. Under the case-law of the Swiss
Federal Supreme Court, a doctor is entitled to prescribe sodium pentobarbital in order to allow his patient
to commit suicide, provided that specific conditions laid down in the Federal Supreme Courts case-law
are fulfilled (compare paragraph 30, above).
16. The Court observes that the Federal Supreme Court, in its case-law on the subject, has referred to the
medical ethics guidelines on the care of patients at the end of their life, which were issued by a nongovernmental organisation and do not have the formal quality of law. Furthermore, the Court observes that
these guidelines, according to the scope of application defined in their section 1, only apply to patients
whose doctor has arrived at the conclusion that a process has started which, as experience has indicated,
will lead to death within a matter of days or a few weeks (compare paragraph 33 above). As the applicant
is not suffering from a terminal illness, her case clearly does not fall within the scope of application of
these guidelines. The Court further observes that the Government have not submitted any other material
containing principles or standards which could serve as guidelines as to whether and under which
circumstances a doctor is entitled to issue a prescription for sodium pentobarbital to a patient who, like the
applicant, is not suffering from a terminal illness. The Court considers that this lack of clear legal
guidelines is likely to have a chilling effect on doctors who would otherwise be inclined to provide
someone such as the applicant with the requested medical prescription. This is confirmed by the letters
from Drs B. and S. (see paragraph 11, above), who both declined the applicants request on the grounds
that they felt prevented by the medical practitioners code of conduct or feared lengthy judicial
proceedings and, possibly, negative professional consequences.
17. The Court considers that the uncertainty as to the outcome of her request in a situation concerning a
particularly important aspect of her life must have caused the applicant a considerable degree of anguish.
The Court concludes that the applicant must have found herself in a state of anguish and uncertainty
regarding the extent of her right to end her life which would not have occurred if there had been clear,
State-approved guidelines defining the circumstances under which medical practitioners are authorised to
issue the requested prescription in cases where an individual has come to a serious decision, in the
exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a
specific medical condition. The Court acknowledges that there may be difficulties in finding the necessary
political consensus on such controversial questions with a profound ethical and moral impact. However,
these difficulties are inherent in any democratic process and cannot absolve the authorities from fulfilling
their task therein.
18. The foregoing considerations are sufficient to enable the Court to conclude that Swiss law, while
providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does
not provide sufficient guidelines ensuring clarity as to the extent of this right. There has accordingly been
a violation of Article 8 of the Convention in this respect.
19. As regards the substance of the applicants request to be granted authorisation to acquire a lethal dose
of sodium pentobarbital, the Court reiterates that the object and purpose underlying the Convention, as set
out in Article 1, is that the rights and freedoms contained therein should be secured by the Contracting
State within its jurisdiction. It is fundamental to the machinery of protection established by the
Convention that the national systems themselves provide redress for breaches of its provisions, with the

Court exercising a supervisory role subject to the principle of subsidiarity (compare, among other
authorities,
20. Having regard to the above considerations, and, in particular, the principle of subsidiarity, the Court
considers that it is primarily up to the domestic authorities to issue comprehensive and clear guidelines on
whether and under which circumstances an individual in the applicants situation that is, someone not
suffering from a terminal illness should be granted the ability to acquire a lethal dose of medication
allowing them to end their life. Accordingly, the Court decides to limit itself to the conclusion that the
absence of clear and comprehensive legal guidelines violated the applicants right to respect for her private
life under Article 8 of the Convention, without in any way taking up a stance on the substantive content of
such guidelines.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
21. The applicant further complained under Articles 6 1, 8 and 13 of the Convention about the domestic
courts decisions and that they had failed to take into account the pertinent arguments she had submitted
before them. She further complained that the impugned decisions had violated her rights under Articles 2
and 3 of the Convention.
22. However, in the light of all the material in its possession, and in so far as the matters complained of
are within its competence, the Court finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with
Article 35 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaint under Article 8 of the Convention admissible and the remainder
of the application inadmissible;
2. Holds by four votes to three that there has been a violation of Article 8 of the Convention;
3. Dismisses unanimously the applicants claim for just satisfaction.
CASE OF KOCH v. GERMANY
I. ALLEGED VIOLATION OF THE APPLICANTS RIGHTS UNDER ARTICLE 8 OF THE
CONVENTION
23. The applicant complained that the domestic courts refusal to examine the merits of his complaint
about the Federal Institutes refusal to authorise his wife to acquire a lethal dose of pentobarbital of
sodium had infringed his right to respect for private and family life under Article 8 of the Convention.
A. Whether there had been an interference with the applicants rights under Article 8
2. Submissions by the applicant
24. The applicant submitted that the domestic decisions interfered with his own rights under Article 8
of the Convention. Both the Federal Institute and the domestic courts had failed to appreciate that he had a

personal interest in the decision on his late wifes request. This personal interest derived from the wish that
his wifes decision to end her life be respected. Furthermore, the distressing situation provoked by his
wifes unfulfilled wish to commit suicide had immediate repercussions on his own state of health.
25. The applicant pointed out that his wife had been prevented from ending her life within the privacy
of their family home, as originally planned by the couple, and instead he had been forced to travel to
Switzerland to enable his wife to commit suicide. The Court had previously considered closest family
members to be victims within the meaning of Article 34 of the Convention because of their close
relationship to the person mainly concerned, if the interference had implications for the family member
lodging the application. In the case at hand, the applicant and his wife had found themselves in a terrible
situation, which also concerned the applicant as a compassionate husband and devoted carer. As the
relationship between husband and wife was extremely close, any infringement directed against the rights
and liberties of one partner was directed against the rights that were shared by both partners. It followed
that each partner in the marriage was entitled to defend the joint rights and liberties of both partners and
that the applicant was himself a victim of a violation of his Convention rights.
26. In the present case, denying the right of the widower to complain about the conduct of the German
authorities would mean that B.K., in order not to lose her right to submit her complaint, would have been
forced to stay alive with all the suffering this implied until the entire proceedings before the domestic
courts, as well as before the Court, were terminated. As B.K. had died shortly after lodging the
administrative appeal in January 2005, she had had no factual possibility of accelerating the court
proceedings by requesting interim measures.
27. Consequently, the questions raised in the present application would never be answered unless a
patient endured many years of additional suffering. This would be in direct contradiction to the essence of
the Convention, which was the protection of human dignity, freedom and autonomy and to the principle
that the Convention was intended to guarantee not rights that were theoretical or illusory, but rights that
were practical and effective (the applicant referred to Artico v. Italy, 13 May 1980, Series A no. 37).
28. According to the applicant, Article 8 of the Convention encompassed the right to end ones own
life. The right to life in the sense of Article 2 did not contain any obligation to live until the natural end.
B.K.s decision to end her biological life did not imply that she waived in any way her right to life. The
lethal dose of medication requested by her would have been necessary in order to allow her to end her life
by a painless and dignified death in her own family home. Because of the refusal to authorise the
purchase, she had been forced to travel to Switzerland in order to end her life.
4. The Courts assessment
29. The Court observes, at the outset, that it qualifies the Governments objection against the
applicants victim status as a question of whether there had been an interference with the applicants own
rights under Article 8 of the Convention. The Court notes that the applicant submitted that his wifes
suffering and the eventual circumstances of her death affected him in his capacity as a compassionate
husband and carer in a way which led to a violation of his own rights under Article 8 of the Convention. In
this respect, the instant case has to be distinguished from cases brought before the Court by the deceased
persons heir or relative solely on behalf of the deceased. It follows that it does not have to be determined
in the present context whether the Convention right relied upon by the applicant was capable of being
transferred from the immediate victim to his or her legal successor (compare in this respect Sanles Sanles,
cited above).
30. In spite of these differences, the Court considers that the criteria developed in its previous case-law
for allowing a relative or heir to bring an action before the Court on the deceased persons behalf are also
of relevance for assessing the question whether a relative can claim a violation of his own rights under

Article 8 of the Convention. The Court will thus proceed by examining the existence of close family ties;
whether the applicant had a sufficient personal or legal interest in the outcome of the proceedings and
whether the applicant had previously expressed an interest in the case (see (c), below, compare Mitev v.
Bulgaria (dec.), no. 42758/07, 29 June 2010).
31. (a) The Court notes, at the outset, that the applicant and B.K. had been married for 25 years at the
time the latter filed her request to be granted the permission to acquire the lethal drug. There is no doubt
that the applicant shared a very close relationship with this late wife.
(b) The applicant has further established that he had accompanied his wife throughout her suffering and
had finally accepted and supported her wish to end her life and travelled with her to Switzerland in order
to realise this wish.
(c) The applicants personal commitment is further demonstrated by the fact that he lodged the
administrative appeal jointly with his wife and pursued the domestic proceedings in his own name after
her death. Under these exceptional circumstances, the Court accepts that the applicant had a strong and
persisting interest in the adjudication of the merits of the original motion.
32. The Court further observes that the instant case concerns fundamental questions evolving around a
patients wish to self-determinedly end his or her life which are of general interest transcending the person
and the interest both of the applicant and of his late wife. This is demonstrated by the fact that similar
questions have repeatedly been raised before the Court.
33. The Court finally turns to the Governments argument that there had been no need to grant the
applicant an own right to pursue his wifes motion, as B.K. could have awaited the outcome of the
proceedings before the domestic courts, which she could have accelerated by requesting interim measures.
The Court observes, at the outset, that the applicant and B.K. jointly lodged an administrative appeal on 14
January 2005. On 12 February 2005, less than a month later, B.K. committed suicide in Switzerland. The
ensuing proceedings before the domestic courts lasted until 4 November 2008, when the Federal
Constitutional Court declared the applicants constitutional complaint inadmissible. It follows that the
domestic proceedings were terminated some three years and nine months after B.K.s death.
34. With regard to the Governments submissions that B.K. could have requested interim measures in
order to expedite the proceedings, the Court observes that interim measures are generally aimed at
safeguarding a plaintiffs legal position pending the main proceedings. They are, as a matter of principle,
not meant to foreclose the outcome of the main proceedings. Having regard to the gravity of the claim at
issue and to the irreversible consequences any granting of an interim injunction would necessarily have
entailed, the Court is not convinced that requesting an interim injunction in the instant case would have
been suited to accelerate the proceedings before the domestic courts.
35. Even assuming that the domestic courts would have processed the proceedings more speedily if
B.K. had still been alive pending the proceedings, it is not for the Court to decide whether B.K., having
decided to end her life after a long period of suffering, should have awaited the outcome of the main
proceedings before three court instances in order to secure a decision on the merits of her claim.
36. Having regard to the above considerations, in particular to the exceptionally close relationship
between the applicant and his late wife and his immediate involvement in the realisation of her wish to
end her life, the Court considers that the applicant can claim to have been directly affected by the Federal
Institutes refusal to grant authorisation to acquire a lethal dose of pentobarbital of sodium.
37. The Court further reiterates that the notion of private life within the meaning of Article 8 of the
Convention is a broad concept which does not lend itself to exhaustive definition (see, inter alia, Pretty,
cited above, 61). In the Pretty judgment, the Court established that the notion of personal autonomy is an
important principle underlying the guarantees of Article 8 of the Convention (see Pretty, ibid.). Without in
any way negating the principle of sanctity of life protected under the Convention, the Court considered

that, in an era of growing medical sophistication combined with longer life expectancies, many people
were concerned that they should not be forced to linger on in old age or in states of advanced physical or
mental decrepitude which conflicted with strongly held ideas of self and personal identity (Pretty, cited
above, 65). By way of conclusion, the Court was not prepared to exclude that preventing the applicant
by law from exercising her choice to avoid what she considered would be an undignified and distressing
end to her life constituted an interference with her right to respect for private life as guaranteed under
Article 8 1 of the Convention (Pretty, cited above, 67).
38. In the case of Haas v. Switzerland, the Court further developed this case-law by acknowledging
that an individuals right to decide in which way and at which time his or her life should end, provided that
he or she was in a position freely to form her own will and to act accordingly, was one of the aspects of
the right to respect for private life within the meaning of Article 8 of the Convention (see Haas, cited
above, 51). Even assuming that the State was under an obligation to adopt measures facilitating a
dignified suicide, the Court considered, however, that the Swiss authorities had not violated this obligation
in the circumstances of that specific case (Haas, cited above, 61).
39. The Court finally considers that Article 8 of the Convention may encompass a right to judicial
review even in a case in which the substantive right in question had yet to be established.
40. Referring to the above considerations, the Court considers that the Federal Institutes decision to
reject B.K.s request and the administrative courts refusal to examine the merits of the applicants motion
interfered with the applicants right to respect for his private life under Article 8 of the Convention.
B. Compliance with Article 8 2 of the Convention
41. The Court will thus proceed by examining whether the applicants own rights under Article 8 of the
Convention were sufficiently safeguarded within the course of the domestic proceedings.
2. Submissions by the applicant
42. The applicant submitted that the domestic courts, by refusing to examine the merits of his motion,
had violated his procedural rights under Article 8 of the Convention.
43. The decision taken by the Federal Institute failed to pursue a legitimate aim and was not necessary
within the meaning of paragraph 2 of Article 8. The lethal dose of medication requested by the applicants
wife would have been necessary in order to allow ending her life by a painless and dignified death in her
own family home. There were no other means available which would have allowed her to end her life in
her family home. In particular, the pertinent rules would not have allowed her to end her life by
interrupting life-supporting treatment in a medically assisted way, as she was not terminally ill at the time
she decided to put an end to her life. The pertinent law in this area was and remained unclear and only
allowed the interruption of life-support for patients suffering from a life-threatening illness.
44. The applicant accepted that a measure of control was necessary in order to prevent abuse of lethal
medication. However, suicide should be allowed if it was justified on medical grounds. The applicant
further considered that assisted suicide was not incompatible with Christian values and was more broadly
accepted by society than the Government might assume. In this respect, the applicant referred to several
public statements issued by individual persons and non-governmental organisations in Germany. The
applicant further emphasised that he did not advocate the provision of unrestricted access to lethal drugs,
but merely considered that his wife should have been authorised the requested dose in this individual case.
There was no indication that the decision of an adult and sane person to end his or her life ran counter to
the public interest or that the requested authorisation would lead to an abuse of narcotic substances. In this

respect, the applicant pointed out that pentobarbital of sodium was widely prescribed as a means of
assisted suicide in Switzerland without this having any negative effects.
4. Assessment by the Court
45. The Court will start its examination under the procedural aspect of Article 8 of the Convention.
The Court observes, at the outset, that both the Administrative Court and the Administrative Court of
Appeal refused to examine the merits of the applicants motion on the ground that he could neither rely on
his own rights under domestic law and under Article 8 of the Convention, nor did he have standing to
pursue his late wifes claim after her death. While the Cologne Administrative Court, in an obiter dictum,
expressed the opinion that the Federal Institutes refusal had been lawful and in compliance with Article 8
of the Convention (see paragraph 18, above), neither the Administrative Court of Appeal nor the Federal
Constitutional Court examined the merits of the original motion.
46. The Court concludes that the administrative courts notwithstanding an obiter dictum made by the
first instance court refused to examine the merits of the claim originally brought before the domestic
authorities by B.K.
47. The Court further observes that the Government did not submit that the refusal to examine the
merits of this case served any of the legitimate interests under paragraph 2 of Article 8. Neither can the
Court find that the interference with the applicants right served any of the legitimate aims enumerated in
that paragraph.
48. It follows that there has been a violation of the applicants right under Article 8 to see the merits of
his motion examined by the courts.
49. With regard to the substantive aspect of the complaint under Article 8, the Court reiterates that the
object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms
should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of
protection established by the Convention that the national systems themselves provide redress for breaches
of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity
50. The Court considers that this principle is even more pertinent if the complaint concerns a question
where the State enjoys a significant margin of appreciation. Comparative research shows that the majority
of Member States do not allow any form of assistance to suicide (compare paragraph 26, above and Haas,
cited above, 55). Only four States examined allowed medical practitioners to prescribe a lethal drug in
order to enable a patient to end his or her life. It follows that the State Parties to the Convention are far
from reaching a consensus in this respect, which points towards a considerable margin of appreciation
enjoyed by the State in this context (also compare Haas, cited above, 55).
51. Having regard to the principle of subsidiarity, the Court considers that it is primarily up to the
domestic courts to examine the merits of the applicants claim. The Court has found above that the
domestic authorities are under an obligation to examine the merits of the applicants claim (see paragraph
66, above). Accordingly, the Court decides to limit itself to examining the procedural aspect of Article 8 of
the Convention within the framework of the instant complaint.
52. It follows from the above that the domestic courts refusal to examine the merits of the applicants
motion violated the applicants right to respect for his private life under Article 8 in of the Convention.

II. ALLEGED VIOLATION OF THE APPLICANTS WIFES RIGHTS UNDER ARTICLE 8 OF THE
CONVENTION
53. The Court recalls that, in its decision on the admissibility of the instant complaint, it had joined to
the merits the question whether the applicant had the legal standing to complain about a violation of his
late wifes Convention rights.
B. The applicants submissions
54. The applicant considered that the instant case fell to be distinguished from the Sanles Sanles case.
In particular, he shared a much closer relationship with the deceased person than the sister-in-law who
lodged the complaint in the above-mentioned case. Furthermore, the applicant, in the instant case, could
claim a violation both of his deceased wifes rights and of his own rights under Article 8.
55. It was decisive that the applicant and his wife had jointly submitted an administrative appeal
against the Federal Institutes decision. After his wifes death, he had pursued the proceedings before the
courts. It followed that he had a legitimate interest to pursue this case before the Court. The applicant
further emphasised that there was a particular general interest in a ruling on the issues raised by the instant
case.
C. The Courts assessment
56. The Court reiterates that in the case of Sanles Sanles (cited above) the applicant was the sister-in
law of Mr S., a deceased tetraplegic who had brought an action in the Spanish courts requesting that his
general practitioner be authorised to prescribe him the medication necessary to relieve him of the pain,
anxiety and distress caused by his condition without that act being considered under the criminal law to
be assisting to suicide or to be an offence of any kind. The Court considered that the right claimed by the
applicant under Article 8 of the Convention, even assuming that such right existed, was of an eminently
personal nature and belonged to the category of non-transferable rights. Consequently, the applicant could
not rely on this right on behalf of Mr S. and the complaint was to be declared inadmissible as being
incompatible ratione personae with the provisions of the Convention.
57. The Court confirmed the principle that Article 8 was of a non-transferrable nature and could thus
not be pursued by a close relative or other successor of the immediate victim in the cases of Thevenon v.
France ((dec.), no. 2476/02, 28 June 2006) and Mitev (cited above).
58. The Court reiterates that [while it] is not formally bound to follow its previous judgments, it is in
the interests of legal certainty, foreseeability and equality before the law that it should not depart, without
good reason, from precedents laid down in previous cases
59. The Court does not find that it has been presented with sufficient reasons to depart from its
established case-law as far as it was under consideration by the Court in the instant case. It follows that the
applicant does not have the legal standing to rely on his wifes rights under Article 8 of the Convention
because of the non-transferable nature of these rights. The Court recalls however that it has concluded
above that there has been a violation of the applicants own right to respect for his private life in the
instant case (see paragraph 72 above). It follows that the applicant is not deprived of a protection under the
Convention even if he is not allowed to rely on his wifes Convention rights.
60. By virtue of Article 35 4 in fine of the Convention, which empowers it to reject any application
which it considers inadmissible ... at any stage of the proceedings, the Court concludes that the

applicants complaint about a violation of his late wifes rights under Article 8 of the Convention is to be
rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.
III.
IV.

ALLEGED VIOLATION OF THE APPLICANTS RIGHT OF ACCESS TO A COURT

61. Relying on Article 13 in conjunction with Article 8 of the Convention, the applicant
complained that the German courts had violated his right to an effective remedy when denying his right to
challenge the Federal Institutes refusal to grant his wife the requested authorisation.
62. In its decision on admissibility, the Court has further considered that this complaint might fall to be
examined under the aspect of the applicants right of access to a court. However, in the light of its above
finding regarding Article 8 of the Convention (see paragraph 72 above), the Court considers that it is not
necessary to examine whether there has also been a violation of the applicants rights under Article 13 or
under Article 6 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicants complaint about a violation of his wifes Convention rights inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention in that the domestic courts refused to
examine the merits of the applicants motion;
3. Holds that it is not necessary to examine whether there has been a violation of the applicants right of
access to a court under Article 6 1 of the Convention;
CASE OF LAMBERT v. FRANCE
A. The judicial investigation and interception of the applicants telephone conversations
63. In the course of a judicial investigation into offences of theft, burglary, handling the proceeds of
theft and aggravated theft, and unlawful possession of Class 4 weapons and ammunition, an investigating
judge at Riom issued a warrant on 11 December 1991 instructing the gendarmerie to arrange for the
telephone line of a certain R.B. to be tapped until 31 January 1992.
64. By means of standard-form written instructions (soit transmis) dated 31 January, 28 February
and 30 March 1992, the investigating judge extended the duration of the telephone tapping until 29
February, 31 March and 31 May 1992 respectively.
65. As a result of this tapping and the interception of some of his conversations, the applicant was
charged with handling the proceeds of aggravated theft; he was held in custody from 15 May to 30
November 1992, when he was released subject to judicial supervision.

AS TO THE LAW
I.

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

66. Mr Lambert submitted that the Court of Cassations decision to refuse him any standing to
complain of the interception of some of his telephone conversations, on the ground that it was a third
partys line that had been tapped, had infringed Article 8 of the Convention, which provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.
A. Whether there was any interference
67. The Court points out that as telephone conversations are covered by the notions of private life
and correspondence within the meaning of Article 8, the admitted measure of interception amounted to
interference by a public authority with the exercise of a right secured to the applicant in paragraph 1 of
that Article.
that the telephone tapping in question was carried out on the line of a third party.
The Government did not dispute this.
B.

Justification for the interference

68. Such interference will contravene Article 8 unless it is in accordance with the law, pursues one
or more of the legitimate aims referred to in paragraph 2 and furthermore is necessary in a democratic
society in order to achieve them.

1. Was the interference in accordance with the law?

69. The expression in accordance with the law within the meaning of Article 8 2 requires, firstly,
that the impugned measure should have some basis in domestic law; it also refers to the quality of the law
in question, requiring that it should be accessible to the person concerned, who must moreover be able to
foresee its consequences for him, and compatible with the rule of law.
(a) Whether there was a statutory basis in French law
70. The Court notes that the investigating judge ordered the telephone tapping in question on the basis
of Articles 100 et seq. of the Code of Criminal Procedure (see paragraphs 12 and 15 above).
71. The interference complained of therefore had a statutory basis in French law.
(b) Quality of the law
72. The second requirement which derives from the phrase in accordance with the law the
accessibility of the law does not raise any problem in the instant case.
73. As to the foreseeability of the law, the Government maintained that following the Courts
judgments in the Kruslin and Huvig cases (see paragraph 21 above), the French legislature had remedied
the omissions and weaknesses of domestic law on telephone tapping by adopting safeguards in respect of
the persons whose telephones could be tapped, the duration of interception, the requirements for drawing
up reports, and the communication or destruction of recordings.
74. The Court considers, as the Commission did, that Articles 100 et seq. of the Code of Criminal
Procedure, inserted by the Law of 10 July 1991 on the confidentiality of telecommunications messages,
lay down clear, detailed rules and specify with sufficient clarity the scope and manner of exercise of the
relevant discretion conferred on the public authorities.
2. Purpose and necessity of the interference

75. The Court shares the opinion of the Government and the Commission and considers that the
interference was designed to establish the truth in connection with criminal proceedings and therefore to
prevent disorder.
76. It remains to be ascertained whether the interference was necessary in a democratic society for
achieving those objectives. Under the Courts settled case-law, the Contracting States enjoy a certain
margin of appreciation in assessing the existence and extent of such necessity, but this margin is subject to
European supervision, embracing both the legislation and the decisions applying it, even those given by an
independent court.
The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and
effective guarantees against abuse. This assessment has only a relative character: it depends on [among
other things] the kind of remedy provided by the national law.
It therefore has to be determined whether the procedures for supervising the ordering and
implementation of the restrictive measures are such as to keep the interference resulting from the
contested legislation to what is necessary in a democratic society.
In addition, the values of a democratic society must be followed as faithfully as possible in the
supervisory procedures if the bounds of necessity, within the meaning of Article 8 2, are not to be
exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly
referred to in the Preamble to the Convention The rule of law implies, inter alia, that an interference by
the executive authorities with an individuals rights should be subject to an effective control
77. The applicant said that he had wished to complain of the circumstances in which the investigating
judge had ordered the extensions of the duration of the telephone tapping (see paragraph 13 above), but
the Court of Cassations decision had deprived him of any practical possibility of using the remedies
provided by law to penalise irregularities committed by the authorities.
78. In the Governments submission, the interference complained of had been necessary in a
democratic society. In the instant case the telephone tapping had been one of the principal means of
investigation contributing to the establishment of the truth and, in particular, to proving the involvement of
various individuals, including the applicant, in large-scale illicit dealing in furniture. Furthermore, Mr
Lambert had been able to avail himself of a remedy in the Indictment Division, and a further remedy in
the Court of Cassation was quite unnecessary to satisfy the requirement of effective control.
79. The Court must accordingly ascertain whether an effective control was available to Mr Lambert
to challenge the telephone tapping to which he had been made subject.
80. It notes, firstly, that the Court of Cassation in its judgment of 27 September 1993 held that the
applicant had no locus standi to challenge the manner in which the duration of the monitoring of a third
partys telephone line was extended and that accordingly the grounds of appeal, which contest[ed] the
grounds on which the Indictment Division [had] wrongly considered it must examine [the] objections of
invalidity and subsequently dismissed them, [were] inadmissible.
81. In its ruling the Court of Cassation therefore went beyond the ground relied on by the applicant
concerning the extension of the duration of the telephone tapping and held that a victim of the tapping of a
telephone line not his own has no standing to invoke the protection of national law or Article 8 of the
Convention. It concluded that in the instant case the Indictment Division had been wrong to examine the
objections of invalidity raised by the applicant as the telephone line being monitored had not been his
own.
82. Admittedly, the applicant had been able to avail himself of a remedy in respect of the disputed
point in the Indictment Division, which held that the investigating judges extension of the duration of the
telephone tapping had been in accordance with Articles 100 et seq. of the Code of Criminal Procedure (see

paragraph 12 above), and it is not the Courts function to express an opinion on the interpretation of
domestic law, which is primarily for the national courts to interpret. However, the Court of Cassation, the
guardian of national law, criticised the Indictment Division for having examined the merits of Mr
Lamberts application.
83. As the Court has already said (see paragraph 28 above), the provisions of the Law of 1991
governing telephone tapping satisfy the requirements of Article 8 of the Convention and those laid down
in the Kruslin and Huvig judgments. However, it has to be recognised that the Court of Cassations
reasoning could lead to decisions whereby a very large number of people are deprived of the protection of
the law, namely all those who have conversations on a telephone line other than their own. That would in
practice render the protective machinery largely devoid of substance.
84. That was the case with the applicant, who did not enjoy the effective protection of national law,
which does not make any distinction according to whose line is being tapped (Articles 100 et seq. of the
Code of Criminal Procedure see paragraph 15 above).
85. The Court therefore considers, like the Commission, that the applicant did not have available to
him the effective control to which citizens are entitled under the rule of law and which would have been
capable of restricting the interference in question to what was necessary in a democratic society.
86. There has consequently been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
87. The applicant also alleged a violation of Article 13 of the Convention

88. In view of the preceding conclusion (see paragraph 41 above), the Court does not consider that it
need rule on the complaint in question.
THE COURT:
1. Holds that there has been a violation of Article 8 of the Convention;
2. Holds that it is unnecessary to examine the complaint based on Article 13 of the Convention;
CASE OF OSMAN v. THE UNITED KINGDOM
I.

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

89. The applicants asserted that by failing to take adequate and appropriate steps to protect the lives of
the second applicant and his father, Ali Osman, from the real and known danger which Paget-Lewis posed,
the authorities had failed to comply with their positive obligation under Article 2 of the Convention

A. Arguments of those appearing before the Court

1. The applicants
90. The applicants contended that a most careful scrutiny of the events leading to the tragic shooting
incident revealed that the police were several times put on notice that the lives of Ali and Ahmet Osman
were at real risk from the threat posed by Paget-Lewis. Despite the clear warning signals given the police
failed to take appropriate and adequate preventive measures to secure effective protection for their lives
from that risk. While disagreeing with the standard of care formulated by the Government (see paragraph
107 below), they submitted that even on the basis of that overly-strict standard the obvious inadequacy of

the police response over a period of fourteen months must be considered to amount to a grave dereliction
of the authorities duty to protect life and a substantial contributing factor to the death of Ali Osman and
the wounding of the second applicant.
91. The applicants argued that by May 1987 the police, on the basis of their contacts with the
headmaster of the school, Mr Prince (see paragraphs 21 and 27 above) must be taken to have been fully
aware that Paget-Lewis was an unbalanced, obsessive and aggressive individual who had stalked Ahmet
Osman, taken photographs of him, plied him with gifts and even assumed his name. Further, they were
plainly made aware that Paget-Lewis was strongly suspected of being responsible for the graffiti incident
and the theft of the school files. However, these warning signs were never taken seriously by the police
even though they must have known of Mr Princes assessment of the situation, in particular his view that
Paget-Lewis was psychologically unbalanced (see paragraph 26 above). In spite of the existence of
compelling circumstantial evidence linking Paget-Lewis with the theft of the school files and the spraying
of graffiti close to the school (see paragraphs 22 and 24 above), the police did not investigate these matters
further.
The applicants further submitted that this inertia on the part of the police in the face of clear indications
that the life of a vulnerable child was at real risk from the danger posed by Paget-Lewis was compounded
by their failure to apprehend the significance of the eight reported attacks on the home and property of the
Osman family between May and November 1987 marking an escalation in an already life-threatening
situation. In brief, nothing was done to establish that Paget-Lewis was the author of this campaign of
harassment and intimidation threatening the security of the family. It was only on 17 December 1987, and
ten days following the ramming incident (see paragraph 38 above), that a decision was finally taken to
arrest Paget-Lewis. Even then the police seriously mishandled the situation by giving Paget-Lewis the
opportunity to avoid arrest and abscond, and then failing to inform the Osman family of this occurrence
and to keep a watch on their home.
92. The applicants emphasised that Paget-Lewis had on three separate occasions stated that he
intended to commit a murder and each of his statements came to the attention of the police (see paragraphs
37, 40 and 46 above). However, the police once again failed to take seriously what was conclusive proof
that the lives of the Osman family were at risk from an unstable, obsessive, disturbed and dangerous
individual. The fact that no records were ever kept of the police visits to the school in March and May
1987 nor of the attacks on the home and property of the family confirmed in the applicants view the
casual and careless approach of the authorities to the investigation of a very grave threat to life and
explained their failure to make use of their powers to prevent that threat from materialising by arresting
Paget-Lewis on suspicion of being responsible for the graffiti incident, the theft of the school files or the
attacks on the Osmans home, or searching his home for evidence of his involvement in these offences or
by having him compulsorily admitted to a psychiatric hospital for assessment.
93. For the above reasons, the applicants concluded that the authorities had failed in the circumstances
to comply with their positive obligation under Article 2 of the Convention. They further contended that
there had never been any effective official investigation into the authorities failure in this respect. Their
civil action in negligence against the police founded on the successful invocation by the Metropolitan
Police Commissioner of the rule of police immunity (see paragraph 63 above). In their view, this gave rise
to a separate violation of Article 2.

B.

The Courts assessment

1. As to the establishment of the facts

94. The Court notes that there was never any independent judicial determination at the domestic level
of the facts of the instant case. The Commission on the basis of the pleadings of the parties and the hearing
which it held in the case made its own findings on the course of events in the case up until the time of the
armed attack by Paget-Lewis on Ali and Ahmet Osman on 7 March 1988 (see paragraphs 6771 above).
According to the applicants, the Commission overlooked in its findings of fact the importance of certain
events which they claim have a bearing on the level of knowledge which can be imputed to the police in
respect of the seriousness of the danger which Paget-Lewis represented for the lives of the Osman family
(see paragraph 10 above).
95. The Court observes that it is called on to determine whether the facts of the instant case disclose a
failure by the authorities of the respondent State to protect the right to life of Ali and Ahmet Osman, in
breach of Article 2 of the Convention. In addressing that issue, and having due regard to the Commissions
role under the Convention in the establishment and verification of the facts of a case, it will assess this
issue in accordance with its usual practice in the light of all the material placed before it by the applicants
and by the Government or, if necessary, material obtained of its own motion.
2. As to the alleged failure of the authorities to protect the rights to life of Ali and Ahmet Osman
96. The Court notes that the first sentence of Article 2 1 enjoins the State not only to refrain from the
intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those
within its jurisdiction. It is common ground that the States obligation in this respect extends beyond its
primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the
commission of offences against the person backed up by law-enforcement machinery for the prevention,
suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before
the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive
obligation on the authorities to take preventive operational measures to protect an individual whose life is
at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute
between the parties.
97. For the Court, and bearing in mind the difficulties involved in policing modern societies, the
unpredictability of human conduct and the operational choices which must be made in terms of priorities
and resources, such an obligation must be interpreted in a way which does not impose an impossible or
disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the
authorities a Convention requirement to take operational measures to prevent that risk from materialising.
Another relevant consideration is the need to ensure that the police exercise their powers to control and
prevent crime in a manner which fully respects the due process and other guarantees which legitimately
place restraints on the scope of their action to investigate crime and bring offenders to justice, including
the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive
obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress
offences against the person (see paragraph 115 above), it must be established to its satisfaction that the
authorities knew or ought to have known at the time of the existence of a real and immediate risk to the
life of an identified individual or individuals from the criminal acts of a third party and that they failed to
take measures within the scope of their powers which, judged reasonably, might have been expected to
avoid that risk. The Court does not accept the Governments view that the failure to perceive the risk to
life in the circumstances known at the time or to take preventive measures to avoid that risk must be

tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above).
Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the
Convention and the obligations of Contracting States under that Article to secure the practical and
effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and
having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the
Convention, it is sufficient for an applicant to show that the authorities did not do all that could be
reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have
knowledge. This is a question which can only be answered in the light of all the circumstances of any
particular case.
On the above understanding the Court will examine the particular circumstances of this case.
98. The Court observes, like the Commission, that the concerns of the school about Paget-Lewis
disturbing attachment to Ahmet Osman can be reasonably considered to have been communicated to the
police over the course of the five meetings which took place between 3 March and 4 May 1987 (see
paragraphs 21 and 27 above), having regard to the fact that Mr Princes decision to call in the police in the
first place was motivated by the allegations which Mrs Green had made against Paget-Lewis and the
schools follow-up to those allegations. It may for the same reason be reasonably accepted that the police
were informed of all relevant connected matters which had come to light by 4 May 1987 including the
graffiti incident, the theft of the school files and Paget-Lewis change of name.
It is the applicants contention that by that stage the police should have been alert to the need to
investigate further Paget-Lewis alleged involvement in the graffiti incident and the theft of the school
files or to keep a closer watch on him given their awareness of the obsessive nature of his behaviour
towards Ahmet Osman and how that behaviour manifested itself. The Court for its part is not persuaded
that the polices failure to do so at this stage can be impugned from the standpoint of Article 2 having
regard to the state of their knowledge at that time. While Paget-Lewis attachment to Ahmet Osman could
be judged by the police officers who visited the school to be most reprehensible from a professional point
of view, there was never any suggestion that Ahmet Osman was at risk sexually from him, less so that his
life was in danger. Furthermore, Mr Perkins, the deputy headmaster, alone had reached the conclusion that
Paget-Lewis had been responsible for the graffiti in the neighbourhood of the school and the theft of the
files. However Paget-Lewis had denied all involvement when interviewed by Mr Perkins and there was
nothing to link him with either incident. Accordingly, at that juncture, the polices appreciation of the
situation and their decision to treat it as a matter internal to the school cannot be considered unreasonable.
Like the Commission , the Court is not persuaded either that the ILEA officials memorandum and
internal notes written between 14 April and 8 May 1987 are an accurate reflection of how the discussions
between Mr Prince and the police officers wound up (see paragraph 28 above).
99. The applicants have attached particular weight to Paget-Lewis mental condition and in particular
to his potential to turn violent and to direct that violence at Ahmet Osman. However, it is to be noted that
Paget-Lewis continued to teach at the school up until June 1987. Dr Ferguson examined him on three
occasions and was satisfied that he was not mentally ill. On 7 August 1987 he was allowed to resume
teaching, although not at Homerton House (see paragraph 35 above). It is most improbable that the
decision to lift his suspension from teaching duties would have been made if it had been believed at the
time that there was the slightest risk that he constituted a danger to the safety of young people in his
charge. The applicants are especially critical of Dr Fergusons psychiatric assessment of Paget-Lewis.
However, that assessment was made on the basis of three separate interviews with Paget-Lewis and if it
appeared to a professional psychiatrist that he did not at the time display any signs of mental illness or a
propensity to violence it would be unreasonable to have expected the police to have construed the actions

of Paget-Lewis as they were reported to them by the school as those of a mentally disturbed and highly
dangerous individual.
100. In assessing the level of knowledge which can be imputed to the police at the relevant time, the
Court has also had close regard to the series of acts of vandalism against the Osmans home and property
between May and November 1987 (see paragraphs 30, 36 and 37 above). It observes firstly that none of
these incidents could be described as life-threatening and secondly that there was no evidence pointing to
the involvement of Paget-Lewis. This was also the view of Detective Sergeant Boardman in his report on
the case in mid-December 1987 having interviewed the Green and Osman families, visited the school and
taken stock of the file (see paragraphs 4245 above). The completeness of Detective Sergeant Boardmans
report and the assessment he made in the knowledge of all the allegations made against Paget-Lewis
would suggest that even if it were to be assumed that the applicants are correct in their assertions that the
police did not keep records of the reported incidents of vandalism and of their meetings with the school
and ILEA officials, this failing could not be said to have prevented them from apprehending at an earlier
stage any real threat to the lives of the Osman family or that the irrationality of Paget-Lewis behaviour
concealed a deadly disposition. The Court notes in this regard that when the decision was finally taken to
arrest Paget-Lewis it was not based on any perceived risk to the lives of the Osman family but on his
suspected involvement in acts of minor criminal damage (see paragraph 49 above).
101. The Court has also examined carefully the strength of the applicants arguments that Paget-Lewis
on three occasions communicated to the police, either directly or indirectly, his murderous intentions (see
paragraph 105 above). However, in its view these statements cannot be reasonably considered to imply
that the Osman family were the target of his threats and to put the police on notice of such. The applicants
rely in particular on Paget-Lewis threat to do a sort of Hungerford which they allege he uttered at the
meeting with ILEA officers on 15 December 1987 (see paragraph 46 above). The Government have
disputed that these words were said on that occasion, but even taking them at their most favourable to the
applicants case, it would appear more likely that they were uttered with respect to Mr Perkins whom he
regarded as principally to blame for being forced to leave his teaching post at Homerton House.
Furthermore, the fact that Paget-Lewis is reported to have intimated to the driver of the car with which he
collided on 7 December 1987 that he was on the verge of committing some terrible deed (see paragraphs
38 and 40 above) could not reasonably be taken at the time to be a veiled reference to a planned attack on
the lives of the Osman family. The Court must also attach weight in this respect to the fact that, even if
Paget-Lewis had deliberately rammed the vehicle as alleged, that act of hostility was in all probability
directed at Leslie Green, the passenger in the vehicle. Nor have the applicants adduced any further
arguments which would enhance the weight to be given to Paget-Lewis claim that he had told PC Adams
that he was in danger of doing something criminally insane (see paragraph 37 above). In any event, as
with his other cryptic threats, this statement could not reasonably be construed as a threat against the lives
of the Osman family.
102. In the view of the Court the applicants have failed to point to any decisive stage in the sequence
of the events leading up to the tragic shooting when it could be said that the police knew or ought to have
known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. While the
applicants have pointed to a series of missed opportunities which would have enabled the police to
neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him
with the graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more
active investigative steps following his disappearance, it cannot be said that these measures, judged
reasonably, would in fact have produced that result or that a domestic court would have convicted him or
ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it. As noted
earlier (see paragraph 116 above), the police must discharge their duties in a manner which is compatible

with the rights and freedoms of individuals. In the circumstances of the present case, they cannot be
criticised for attaching weight to the presumption of innocence or failing to use powers of arrest, search
and seizure having regard to their reasonably held view that they lacked at relevant times the required
standard of suspicion to use those powers or that any action taken would in fact have produced concrete
results.
103. For the above reasons, the Court concludes that there has been no violation of Article 2 of the
Convention in this case.
3. As to the alleged breach by the authorities of a procedural obligation under Article 2
104. The Court considers that the essence of the applicants complaint under this head (see paragraph
106 above) concerns their inability to secure access to a court or other remedy to have an independent
assessment of the police response to the threat posed by Paget-Lewis to the lives of the Osman family. The
Court considers it appropriate therefore to consider this grievance in the context of the applicants
complaints under Articles 6 and 13 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
105. The applicants contended that the failure of the police firstly to bring an end to the campaign of
harassment, vandalism and victimisation which Paget-Lewis waged against their property and family and
secondly, and in particular, to avert the wounding of the second applicant constituted a breach of Article 8
of the Convention
106. The applicants maintained that they could not have been expected to obtain a civil injunction to
prevent Paget-Lewis from intimidating their family and attacking their home and property since any such
request would have been futile. They pleaded in this respect that they would have been unable to provide a
court with any proof that Paget-Lewis was responsible for the acts of vandalism given that the police had
never taken any steps to investigate the incidents which they had reported.
At the hearing the applicants informed the Court that their main complaint under Article 8 concerned
the failure of the police to secure the second applicants personal safety, an issue which the Commission
had not addressed. In the applicants submission, even if it were to be accepted that the police could not
have foreseen that Paget-Lewis would have carried out a near-fatal attack on the life of Ahmet Osman, the
risk of some harm being caused to him was nevertheless foreseeable. In their view that was in itself
sufficient to engage the responsibility of the authorities under Article 8.
107. The Commission found that the applicants complaints concerning the failure of the authorities to
protect their home and property against the attacks allegedly perpetrated by Paget-Lewis did not give rise
to a breach of Article 8 since in its view it would have been open to the applicants to seek an injunction
against Paget-Lewis.
As to the complaint that the police failed to protect the second applicants physical integrity, the
Delegate of the Commission informed the Court at the hearing that the Commission had in fact addressed
this grievance. For the reasons which led it to conclude that there had been no violation of Article 2, it
found that the complaint under Article 8 could not be sustained either.
108. The Court recalls that it has not found it established that the police knew or ought to have known
at the time that Paget-Lewis represented a real and immediate risk to the life of Ahmet Osman and that
their response to the events as they unfolded was reasonable in the circumstances and not incompatible
with the authorities duty under Article 2 of the Convention to safeguard the right to life. In the Courts
view, that conclusion equally supports a finding that there has been no breach of any positive obligation
implied by Article 8 of the Convention to safeguard the second applicants physical integrity.

109. As to the applicants contention that the police failed to investigate the attacks on their home with
a view to ending the campaign of harassment against the Osman family, the Court reiterates that the police
had taken the view that there was no evidence to implicate Paget-Lewis and for that reason charges could
not be laid against him. It is to be noted in this respect that Paget-Lewis was questioned by PC Adams
sometime in November 1987, but he denied all responsibility. Detective Sergeant Boardman also
confirmed in his report that there was no evidence on which to mount a prosecution case against PagetLewis (see paragraph 45 above). In the light of new developments in the case, an attempt was in fact made
to arrest and question Paget-Lewis on 17 December 1987 on suspicion of criminal damage including with
respect to the acts of vandalism directed at the applicants home and property (see paragraph 49 above).
However, that attempt failed.
110. The Court concludes accordingly that the facts of the case do not disclose the breach by the
authorities of any positive obligation under Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTON
111. The applicants alleged that the dismissal by the Court of Appeal of their negligence action against
the police on grounds of public policy amounted to a restriction on their right of access to a court in
breach of Article 6 1 of the Convention
A. Applicability of Article 6 1
112. The Government maintained that the applicants could not rely on any substantive right in
domestic law to sue the police for their alleged failure to prevent Paget-Lewis from shooting dead Ali
Osman and seriously wounding the second applicant. They explained that whether or not the police can be
considered to owe a plaintiff a duty of care in a particular context depended not only on proof of proximity
between the parties and the foreseeability of harm but also on the answer to the question whether it was
fair, just and reasonable to impose a duty of care on the police. The Court of Appeal had answered the
latter question in the negative, being satisfied that there were no other public-policy considerations which
would have led it to reach a different conclusion. Accordingly, since the applicants had failed to establish
an essential ingredient of the duty of care under domestic law they did not have any substantive right for
the purposes of the applicability of Article 6 1. Any other conclusion would result in the impermissible
creation by the Convention institutions of a substantive right where none in fact existed in the domestic
law of the respondent State.
113. The applicants replied that the Court of Appeal had accepted their proposition that there was a
special relationship of proximity between them and the police since the police knew that Paget-Lewis was
conducting a campaign of victimisation against the Osman family and that the second applicant was
especially at risk from the threat posed by Paget-Lewis to his life. The applicants maintained that although
they had established all the constituent elements of the duty of care, the Court of Appeal was constrained
by precedent to apply the doctrine of police immunity developed by the House of Lords in the Hill case
(see paragraph 90 above) to strike out their statement of claim. In their view the doctrine of police
immunity was not one of the essential elements of the duty of care as was claimed by the Government, but
a separate and distinct ground for defeating a negligence action in order to ensure, inter alia, that police
manpower was not diverted from their ordinary functions or to avoid overly cautious or defensive
policing.
114. The Commission agreed with the applicants that Article 6 1 was applicable. It considered that
the applicants claim against the police was arguably based on an existing right in domestic law, namely

the general tort of negligence. The House of Lords in the Hill case modified that right for reasons of public
policy in order to provide an immunity for the police from civil suit for their acts and omissions in the
context of the investigation and suppression of crime. In the instant case, that immunity acted as a bar to
the applicants civil action by preventing them from having an adjudication by a court on the merits of
their case against the police.
115. The Court recalls at the outset that Article 6 1 secures to everyone the right to have any claim
relating to his civil rights and obligations brought before a court or tribunal. In this way the Article
embodies the right to a court, of which the right of access, that is the right to institute proceedings
before courts in civil matters constitutes one aspect only.
116. The Court notes with reference to this fundamental principle that the respondent Government
have disputed the applicability of Article 6 1 to the applicants claim. They allege that the applicants did
not have any substantive right under domestic law given that the Court of Appeal, in application of the
exclusionary rule established by the House of Lords in the Hill case (see paragraph 65 above), dismissed
their civil action against the police as showing no cause of action.
117. The Court would observe that the common law of the respondent State has long accorded a
plaintiff the right to submit to a court a claim in negligence against a defendant and to request that court to
find that the facts of the case disclose a breach of a duty of care owed by the defendant to the plaintiff
which has caused harm to the latter. The domestic courts enquiry is directed at determining whether the
constituent elements of a duty of care have been satisfied, namely: whether the damage is foreseeable;
whether there exists a relationship of proximity between the parties; and whether it is fair, just and
reasonable to impose a duty of care in the circumstances (see paragraphs 94 and 133 above).
It is to be noted that the latter criterion, which has been relied on by the Government in support of their
contention that the applicants have no substantive right under domestic law, is not of sole application to
civil actions taken against the police alleging negligence in the investigation and suppression of crime, but
has been considered and applied in other spheres of activity. The House of Lords in the Hill case declared
for the first time that this criterion could be invoked to shield the police from liability in the context of the
investigation and suppression of crime (see paragraphs 9092 above). Although the applicants have argued
in terms which suggest that the exclusionary rule operates as an absolute immunity to negligence actions
against the police in the context at issue, the Court accepts the Governments contention that the rule does
not automatically doom to failure such a civil action from the outset but in principle allows a domestic
court to make a considered assessment on the basis of the arguments before it as to whether a particular
case is or is not suitable for the application of the rule. They have referred to relevant domestic case-law in
this respect (see paragraph 94 above).
118. On that understanding the Court considers that the applicants must be taken to have had a right,
derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable
claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and
that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the
Hill case. In the view of the Court the assertion of that right by the applicants is in itself sufficient to
ensure the applicability of Article 6 1 of the Convention.
119. For the above reasons, the Court concludes that Article 6 1 is applicable. It remains to be
determined whether the restriction which was imposed on the exercise of the applicants right under that
provision was lawful.

B.

Compliance with Article 6 1

120. According to the applicants the public-interest considerations invoked by the House of Lords in
the Hill case as justification for the police immunity rule and on which the Government have based their
case could not be sustained. Thus, the argument that exposing the police to actions in negligence would
result in a significant diversion of manpower from their crime-suppression function sits ill with the fact
that the immunity is limited to negligence actions involving the investigation and suppression of crime and
not to cases of assault or false imprisonment which could equally be said to give rise to a diversion of
manpower.
As to the contention that the threat of liability for negligence would lead to defensive or over-cautious
policing, they maintained that this consideration has never been invoked to protect other vital public
services such as hospitals, ambulances and the fire brigade from negligence actions. They also disputed
the validity of the argument that a negligence action against the police would have the undesirable effect
of reopening closed investigations in order to ascertain whether they had been conducted competently. In
their submission if a negligent investigation has resulted in a wholly preventable death there are cogent
reasons to re-examine the conduct of the police. The applicants further contended, inter alia, that the
imposition of liability in negligence on the police in respect of the investigation and suppression of crime
would serve to enhance standards among officers, especially where the activity in question concerned the
protection of the right to life.
121. In their alternative submission the applicants asserted that even if it could be said that the
immunity pursued a legitimate aim or aims, its operation offended against the principle of proportionality.
They reasoned in this respect that the immunity was complete and as such did not distinguish between
cases where the merits were strong and those where they were weak. In the instant case, involving the
protection of a child and the right to life and where the damage caused was grave, the requirements of
public policy could not dictate that the police should be immune from liability. Furthermore, the combined
effect of the strict tests of proximity and foreseeability provided limitation enough to prevent untenable
cases ever reaching a hearing and to confine liability to those cases where the police have caused serious
loss through truly negligent actions.
122. The Government replied that the exclusionary rule which defeated the applicants civil action
pursued the legitimate aim or aims outlined by the House of Lords in the Hill case, in particular the
avoidance of defensive policing and the diversion of police manpower (see paragraph 91 above). In the
Governments view it was central to the reasoning of the House of Lords in the Hill case that the
imposition of a duty of care in the context in question carried with it a real risk that effective policing for
the benefit of the public at large would be undermined.
123. Further, the rule was a proportionate response to the attainment of those aims and fell well within
the respondent States margin of appreciation. They emphasised that the exclusion was not a blanket
exclusion of liability but a carefully and narrowly focused limitation which applied only in respect of the
investigation and suppression of crime, and even then not in every case (see paragraph 93 above). Thus, in
the instant case, the Court of Appeal had considered that there were no competing public-policy
considerations at stake which would have outweighed the general public-policy consideration that it would
not be fair, just and reasonable to impose a duty of care on the police.
124. The Government further stressed in defence of the proportionality of the restriction on the
applicants right to sue the police that they could have taken civil proceedings against Paget-Lewis.
Moreover, they had in fact sought to sue Dr Ferguson but subsequently abandoned their action against
him. In either case they had full access to a court.
125. The Commission accepted that the impugned rule may be considered to pursue the legitimate
aims suggested by the Government (see paragraph 143 above). However, it agreed with the essence of the

applicants arguments for countering the Governments justification for the application of the rule (see
paragraphs 141 and 142 above). The Commission noted, in particular, that the applicants claimed to have
satisfied the proximity component of the duty of care, which had not been satisfied by the plaintiff in the
Hill case. However, they were denied the opportunity of establishing the factual basis of their claim in
adversarial proceedings through the operation of an immunity rule which, moreover, did not distinguish
between negligence having trivial effects and that, as in this case, with catastrophic results.
126. The Court recalls that Article 6 1 embodies the right to a court, of which the right of access,
that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.
However, this right is not absolute, but may be subject to limitations; these are permitted by
implication since the right of access by its very nature calls for regulation by the State. In this respect, the
Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance
of the Conventions requirements rests with the Court. It must be satisfied that the limitations applied do
not restrict or reduce the access left to the individual in such a way or to such an extent that the very
essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 1 if it
does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between
the means employed and the aim sought to be achieved.
127. Against that background the Court notes that the applicants claim never fully proceeded to trial
in that there was never any determination on its merits or on the facts on which it was based. The decision
of the Court of Appeal striking out their statement of claim was given in the context of interlocutory
proceedings initiated by the Metropolitan Police Commissioner and that court assumed for the purposes of
those proceedings that the facts as pleaded in the applicants statement of claim were true. The applicants
claim was rejected since it was found to fall squarely within the scope of the exclusionary rule formulated
by the House of Lords in the Hill case.
128. The reasons which led the House of Lords in the Hill case to lay down an exclusionary rule to
protect the police from negligence actions in the context at issue are based on the view that the interests of
the community as a whole are best served by a police service whose efficiency and effectiveness in the
battle against crime are not jeopardised by the constant risk of exposure to tortious liability for policy and
operational decisions.
129. Although the aim of such a rule may be accepted as legitimate in terms of the Convention, as
being directed to the maintenance of the effectiveness of the police service and hence to the prevention of
disorder or crime, the Court must nevertheless, in turning to the issue of proportionality, have particular
regard to its scope and especially its application in the case at issue. While the Government have
contended that the exclusionary rule of liability is not of an absolute nature (see paragraph 144 above) and
that its application may yield to other public-policy considerations, it would appear to the Court that in the
instant case the Court of Appeal proceeded on the basis that the rule provided a watertight defence to the
police and that it was impossible to prise open an immunity which the police enjoy from civil suit in
respect of their acts and omissions in the investigation and suppression of crime.
130. The Court would observe that the application of the rule in this manner without further enquiry
into the existence of competing public-interest considerations only serves to confer a blanket immunity on
the police for their acts and omissions during the investigation and suppression of crime and amounts to an
unjustifiable restriction on an applicants right to have a determination on the merits of his or her claim
against the police in deserving cases.
In its view, it must be open to a domestic court to have regard to the presence of other public-interest
considerations which pull in the opposite direction to the application of the rule. Failing this, there will be
no distinction made between degrees of negligence or of harm suffered or any consideration of the justice
of a particular case. It is to be noted that in the instant case Lord Justice McCowan (see paragraph 64

above) appeared to be satisfied that the applicants, unlike the plaintiff Hill, had complied with the
proximity test, a threshold requirement which is in itself sufficiently rigid to narrow considerably the
number of negligence cases against the police which can proceed to trial. Furthermore, the applicants case
involved the alleged failure to protect the life of a child and their view that that failure was the result of a
catalogue of acts and omissions which amounted to grave negligence as opposed to minor acts of
incompetence. The applicants also claimed that the police had assumed responsibility for their safety.
Finally, the harm sustained was of the most serious nature.
131. For the Court, these are considerations which must be examined on the merits and not
automatically excluded by the application of a rule which amounts to the grant of an immunity to the
police. In the instant case, the Court is not persuaded by the Governments argument that the rule as
interpreted by the domestic court did not provide an automatic immunity to the police.
132. The Court is not persuaded either by the Governments plea that the applicants had available to
them alternative routes for securing compensation (see paragraph 145 above). In its opinion the pursuit of
these remedies could not be said to mitigate the loss of their right to take legal proceedings against the
police in negligence and to argue the justice of their case. Neither an action against Paget-Lewis nor
against Dr Ferguson, the ILEA psychiatrist, would have enabled them to secure answers to the basic
question which underpinned their civil action, namely why did the police not take action sooner to prevent
Paget-Lewis from exacting a deadly retribution against Ali and Ahmet Osman. They may or may not have
failed to convince the domestic court that the police were negligent in the circumstances. However, they
were entitled to have the police account for their actions and omissions in adversarial proceedings.
133. For the above reasons, the Court concludes that the application of the exclusionary rule in the
instant case constituted a disproportionate restriction on the applicants right of access to a court. There
has accordingly been a violation of Article 6 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
134. The applicants complained that they had no effective remedy enabling them to have an
adjudication on their claim that the authorities had not done all that was required of them under Article 2
to protect the lives of Ali and Ahmet Osman. They relied on Article 13 of the Convention. The applicants
submitted that the only effective mechanism in the circumstances for holding the authorities accountable
for their failure in the instant case to comply with their positive obligation under Article 2 of the
Convention would have been a civil action in negligence against the police. However the pursuit of that
remedy was blocked when the Court of Appeal accepted the Metropolitan Police Commissioners plea of
police immunity and struck out their statement of claim.
135. The Commission considered that no separate issue arose under Article 13 in view of its finding
of a violation of Article 6 1 of the Convention.
136. The Court agrees with the Commissions opinion on this complaint having regard to its own
conclusion that the applicants rights under Article 6 1 have been violated.
FOR THESE REASONS, THE COURT:
1. Holds by seventeen votes to three that there has been no violation of Article 2 of the Convention;
2. Holds by seventeen votes to three that there has been no violation of Article 8 of the Convention;
3. Holds unanimously that Article 6 1 of the Convention is applicable in this case and has been violated;
4. Holds by nineteen votes to one that it is unnecessary to examine the applicants complaints under
Article 13 of the Convention;

ROSCA STANESCU C. ROMANIA

THE FACTS
A. THE CIRCUMSTANCES OF THE CASE
The applicants are journalists. At the material time they were working for the newspaper Ziua.
On 11 May 1995 the Bucharest police commenced a judicial investigation concerning a number of
articles the applicants had published in Ziua. According to the police, certain statements made about the
then Romanian President, Mr Iliescu, amounted to an insult to authority, an offence punishable under
Article 238 of the Criminal Code.
At their trial in the Bucharest Court of First Instance, the applicants pleaded that Article 238 of the
Criminal Code was unconstitutional. The Constitutional Court dismissed their objection in a decision of
6 March 1996, noting that the purpose of Article 238 of the Criminal Code was to uphold the authority
of the State and that it was necessary to punish such an offence as the authority of the State was a
prerequisite for the exercise of State power. The offence therefore involved an insult aimed at authority,
not an individual. Furthermore, whether the offence had taken place or not depended on the status of
the victim, who had to be someone holding high office within the State. Article 238 was necessary to
create an ideal climate of order and perfect security for people entrusted with important duties under the
Governments programme. The crucial requirement for the charge of insult to authority to be made out
was that the offence committed should have been such as to undermine authority, for if that condition
was not satisfied, the offence did not constitute an insult to authority but an offence against an
individual, even if it had been committed against a person holding high office within the State.
The applicants appealed against the Constitutional Courts decision.
On 24 October 1996 the Bucharest Court of First Instance found the applicants guilty of the offence of
insult to authority provided for in Article 238 of the Criminal Code on the ground that in articles
published from 9 May 1995 onwards in Ziua they had denigrated or even insulted the Romanian
President, Mr Iliescu, through tendentious or false statements. The court noted, in particular, that in an
article published on 9 May 1995, the first applicant had called the Romanian President, Mr Iliescu, a
murderer, accusing him of having ordered the distribution of arms on 22 December 1989 and hence of
having deliberately triggered off the ensuing genocide. The Court of First Instance also noted that the
applicants had stated in an article published on 31 May 1995 that Mr Iliescu had been recruited by the
KGB while he was studying in Moscow.
The court sentenced the first applicant to one years imprisonment and the second to two years
imprisonment.
The applicants appealed against that decision.
On 19 November 1996 the Constitutional Court dismissed the applicants appeal against its decision of
6 March 1996, holding that Article 238 of the Criminal Code was compatible with the Constitution and
Article 10 of the European Convention on Human Rights.
The appeal against the judgment of 24 October 1996 was allowed by the Bucharest County Court in a
decision of 24 March 1997 against which no further appeal lay. The County Court acquitted the
applicants, holding that the provisions of Article 238 of the Criminal Code were not applicable to the press, as
the statements in question related to political matters, for which the freedom of
expression as safeguarded by Article 10 of the Convention was broader. Lastly, the County Court

considered that the applicants could not be punished otherwise than by the application of rules of
professional conduct.
COMPLAINTS
The applicants submitted that Article 238 of the Criminal Code constituted a breach of Article 10 of the
Convention and complained in that connection about the Constitutional Courts decision of 19 November 1996,
in which it had concluded that Article 238 of the Criminal Code was
compatible with the Romanian Constitution and the Convention.
They alleged that Article 238 of the Romanian Criminal Code, which made it an offence to insult
authority, inhibited journalists wishing to write an article about a person holding high office within the
State. They also complained that Article 238 treated defaming or insulting authority as a more serious
crime than the offence of insulting or defaming an individual provided for in Articles 205 and 206 of
the same code. Where the offence provided for in Article 238 was concerned, the prosecuting
authorities dealt with the case of their own motion as it was not necessary for the victim to lodge a
complaint, whereas an investigation in relation to the offences provided for under Articles 205 and 206
could be instigated only upon a complaint by the victim. Secondly, the penalties provided for in Article
238 were heavier than those provided for in Articles 205 and 206.
The applicants considered that the effect of that difference in treatment was to inhibit journalists who
wished to debate public issues or disseminate information relating to dignitaries or politicians holding
office within the State.
THE LAW
The applicants complained that Article 238 of the Criminal Code was incompatible with Article 10 of
the Convention in that it was too vaguely worded and did not meet the requirements of being accessible
and foreseeable in its effects. Furthermore, the interference provided for by Article 238 was not
necessary in a democratic society. The applicants also complained that Article 238 introduced
discrimination into the punishment of certain offences depending on the status of the person about
whom journalists had written.
The Government maintained at the outset that the applicants could not claim to be victims of a
violation of the Convention within the meaning of Article 34 simply because of the existence of
Article 238 of the Romanian Criminal Code. The Government emphasised, firstly, that the applicants
could not claim that Article 238 had been applied to their detriment, since they had been acquitted by
the decision of 24 March 1997.
Secondly, they asserted that the applicants had failed to substantiate their claims to be victims in the
absence of a specific measure applying Article 238 of the Criminal Code.
In particular, they alleged that the applicants had failed to show that there was a reasonable likelihood
of a criminal conviction based on that Article simply because they had exercised their right to freedom
of expression. The Government pointed out that, according to the Commissions case-law, the
publication of defamatory documents is not as such protected under the Convention (see Times
Newspapers Ltd. v. the United Kingdom, no. 14631/89, Commission decision of 5 March 1990,
Decisions and Reports (DR) 65, p. 307). Lastly, the Government submitted that Article 238 was very
rarely applied, the last time being in 1997 when the former Romanian President had made a complaint
against a member of parliament. However, that case was still pending in the Romanian courts.
The applicants disputed the Governments argument. They contended that by finding that Article 238
of the Criminal Code was compatible with the Constitution and Article 10 of the Convention, the
Constitutional Court had allowed provisions to remain in place which threatened journalists freedom

to inform the public about the activities of persons holding high office within the State. Any criticism
of the activity of such a person could be considered by the Romanian authorities to be an insult to the
authority of the State and therefore be punished under Article 238 of the Criminal Code. Consequently,
the applicants considered that they were victims since they ran the risk of being directly affected by the
provision in question in the future. In that connection they maintained that criminal proceedings against
journalists under Article 238 of the Criminal Code were not rare. Although the courts sometimesdid not
follow the public prosecutors recommendation and acquitted the accused, the applicants
argued that the mere fact of allowing the prosecuting authorities to prosecute journalists of their own
motion was a form of harassment incompatible with the freedom of expression.
By way of an example other than the proceedings against them, the applicants referred to the recent
prosecution based on Article 238 of the Criminal Code and not on Article 206, which covers
defamation, of a journalist who had criticised the president of a county court.
The Court notes that the applicants did not complain of the proceedings instituted against them in the
Bucharest County Court, which ended with their acquittal on 24 March 1997. Their complaint was
about Article 238 of the Criminal Code, which the Constitutional Court had found to be compatible
with the Constitution in its decision of 19 November 1996.
The Court points out that Article 34 entitles individuals to contend that a law violates their rights by
itself, in the absence of an individual measure of implementation, if they run the risk of being directly
affected by .
In addition, a journalist may, in certain circumstances, be regarded as a victim of a violation of Article
10 of the Convention even though no proceedings for insult to authority have been brought against him
on account of articles that he is said to have written, for example where the relevant legislation is too
vague to allow the risk of proceedings to be predicted .
The Court considers that that was not the case here, however.
As regards the proceedings brought against them, the applicants were acquitted by the decision of the
Bucharest County Court of 24 March 1997. After that decision, the applicants did not show that they
had been prosecuted under Article 238 of the Criminal Code and therefore prevented from imparting
information.
Furthermore, the Court emphasises that by contrast with the aforementioned Association Ekin v. France
case, in which it found that the risk that the legislation in issue would be applied to the applicant again
was not just hypothetical but genuine and effective, the applicants in this case were no longer at risk, in
their capacity as journalists, of being affected by Article 238 of the Criminal Code. In that connection,
it notes that in its decision of 24 March 1997 the Bucharest County Court expressly ruled that Article
238 of the Romanian Criminal Code was not applicable to the press, regard being had to the freedom of
expression as guaranteed by Article 10 of the Convention.
That being so, the Court considers that the applicants cannot claim to be victims within the meaning of
Article 34 of the Convention and that the application must accordingly be declared inadmissible as
being incompatible ratione personae with the provisions of the Convention pursuant to Article 35 3
and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.