TREBALL DE FI DE GRAU: SIMULACI

DAVANT INSTNCIES JURISDICCIONALS

INTERNACIONALS
THE EUROPEAN COURT OF HUMAN RIGHTS
MOOT COURT

Jofre Bosch Buch

Clara Fernndez Albert
Miguel Garcia-Ruiz Verd
Clara Serra i Baiget
Elisabet Vies Vila
Tutors:
David Bondia Garcia
Rosa Ana Alija Fernndez

MOOT COURT COMPETITION

2013/2014
CASE OF ADAM v. EVRYLIA
Mr Adam
(Complainant)
vs
The Government of Evrylia
(Respondent)

Submission for the Complainant

MOOT COURT COMPETITION

2013/2014
CASE OF ADAM v. EVRYLIA
Mr Adam
(Complainant)
vs
The Government of Evrylia
(Respondent)

Submission for the Respondent

TABLE OF CONTENTS
Table of contents .............................................................................................................1
List of references .............................................................................................................2
I. Conventions and Treaties ..................................................................................2
II. Jurisprudence .....................................................................................................2
III. Secondary sources ..............................................................................................3
List of abbreviations .......................................................................................................3
Statement of facts ............................................................................................................3
Legal pleading..................................................................................................................4
I. Admissibility of the claim ...................................................................................4
1. Victim Status ...................................................................................................4
2. Non-exhaustion of domestic remedies ............................................................5
3. Compliance with the six-month time-limit......................................................7
4. Lack of jurisdiction of the Evrylian Courts .....................................................7
II. Statements of the alleged violations ...................................................................9
1. Paragraph 1 Article 10 ECHR .........................................................................9
a. Violation of article 10 of the Convention concerning the freedom to
impart and receive information and ideas............................................9
b. Violation of article 10 of the Convention on freedom of press .........10
2. Paragraph 2 Article 10 ECHR .......................................................................13
a. Violation of article 10 for not meeting the three requirements for
legitimate interference .......................................................................13
b. Violation of article 10 of the Convention for not establishing
proportionate measures......................................................................14
3. Violation of Article 6 ECHR .........................................................................15
a. Violation of Article 6 (1) of the Convention .....................................15
b. Violation of Article 6 (3): (b) and (c) ................................................17
c. Violation of the Article 6 (3) .............................................................18

LIST OF REFERENCES
I. CONVENTIONS AND TREATIES

Convention for the Protection of Human Rights and Fundamental Freedoms, (entered
into force 3 September, 1953)
II. JURISPRUDENCE

A, B and C v. Ireland [GC], no. 25579/05

Amuur v. France, 25 June 1996

D.H. and Others v. the Czech Republic, no. 57325/00

Dalban v. Romania [GC], no. 28114/95

Delfi AS v. Estonia, no. 64569/09

Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99

Engel and Others v. The Netherlands, Series A n 22.

Gorraiz Lizarraga and Others v. Spain, no. 62543/00

Handyside v. the United Kingdom, Series A no. 24.

Ilhan v Turkey\[GC], no. 22277/93, 59, ECHR 2000-VII

Jersild v. Denmark, Series A no. 298

Jersild v. Denmark, Series A no. 298

Kozacioglu v. Turkey [GC], no. 2334/03

Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory, Advisory Opinion, I.C.J Reports 2004 (9 July 2004)

Lingens v. Austria, Series A no. 103

Mantovanelli v. France

Mller v. Switzerland, no. 41202/98

Perrin v. the United Kingdom (dec.), no. 5446/03, p.5, ECHR 2005-XI

Ringeisen v. Austria, Series A no. 15

Srek v Turkey (1) no. 23927/94 and 24277/94

Tauira and 18 others v. France, no. 28204/95

Yassar Hussain v. the United Kingdom, no. 8866/04

Zana v. Turkey
III. SECONDARY SOURCES
2

Practial Guide on Admissibility Criteria, Research Division, European Court of

Human Rights, 2011

KILKELLY, URSULA. A practical guide to the implementation of article 8,

European Convention of Human Rights. The right to respect for private and family
life, 2003.

VANDENHOLE, WOUTER. Judgements and Documents, Faculty of Law

Universiteit Antwerpen, 2013.

CASADEVALL, JOSEP. El Conveni europeu de drets humans, el Tribunal

d'Estrasburg i la seva jurisprudncia, 2007.

Rules of Court, European Court of Human Rights, July 2009

LIST OF ABBREVIATIONS
Art.

Article

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

ETD

Evrylian Telecommunications Directorate

STATEMENT OF FACTS
Victor Adam is a well-known and widely read journalist at the peak of his career. Being
one true defender of both tolerance and freedom of speech he has reluctantly been
involved in an ethnic controversy long time disputed among the two countries he is
national from, Evrylia and Favonia. He is now facing a defamation accusation, and has
a pending criminal proceeding above him, resulting from which, he has been deprived
of the one direct media connection with his readers: His personal Blog, both denying
them its lawful right of being informed as well as giving their opinion.
On 20 March 2010, Victor Adam posted an article on the blog platform Bbligg about
the controversial life of some players of a favonian team and specifically about a
famous football players life, David K. The latter, is a member of the Kroppa minority
race in Evrylia, but this fact is never mentioned in the article. Even though, this
particular topic was the object and source of comments of a hatred speech nature against
3

the player, which ends up unleashing a public dispute from the two different countries.
The Evrylia Prosecutor has held Mr. Adam accountable for the omission of the
diligence required in regards to his personal Blog.
This crimes are based on the grounds of his Blogs public manifesto, created long
before this event had been perpetuated, where in lieu of endorsing hate speech he
encourages reasoned argument, promising not to censor the readers opinions. For thus,
and for the time being, his Blog no longer exists in Evrylia, and as for his Phrendbook
profile and the Media forum group together with that both have been taken down. And
because several misfortunes follow the football players life, Mr. Adam has been to date
paying for them all, aside from the measures above mentioned.
Firstly, he has been fined each day until he deletes the posts for damages against that
particular. Secondly having to publish an apology statement, which has already been
done, following by an appeal being dismissed by the same Court of Evrylia who instead
of protecting the media, sentenced that even if Mr. Adam wrote from Favonia, where no
anti-hate speech legislation exists, his Blogs posts should be deleted nonetheless.
LEGAL PLEADING
I. ADMISSIBILITY OF THE CLAIM
1. Victim Status
According to Article 34 of the Convention, Mr Adam is a victim of a breach of the
Convention by the Evrylian State and its anti-hate speech legislation. It is submitted that
the applicant has suffered a violation of several Convention rights. As it was hold by the
Court in Amuur v. France the word "victim" denotes the person directly affected by the
act in issue, the existence of a violation of the Convention being conceivable even in the
absence of prejudice1.
On the one hand, Mr Adam is being deprived for the use of his Phrendbook profile and
1

Amuur v. France, 25 June 1996, 36, Reports of Judgments and Decisions 1996-III

has found his personal blog blocked. This sites were a mean to exert his professional
activity, and therefore, his right to freedom of expression. The applicant does his job
also through the media, and thus, he has been prived by the taken down of his profile
and the blocking of the blog profile to do so.
On the other hand, Mr Adam has had an economic prejudice due to he had to pay
damages to Mr K. It is clear the material harm caused to the applicant because of the
order of the Evrylian court.
He is thus, a direct victim for the purposes of admissibility of an individual
application in accordance to Article 34 of the Convention as he is directly affected by
the actuations taken by the Evrylian courts. Mr Adam has been deprived of exercising
his professional activity and has had, furthermore, to pay for an economic
compensation.
According to the Court in Tauira v. France in order for an applicant to claim to be a
victim of a violation of the Convention, there must be a sufficiently direct link between
the applicant and the loss which he considers he has suffered as a result of the alleged
violation2. There happens to be a direct link between the proceedings taken by the
Evrylian State against Mr Adam and the prejudice caused to the latter.
2. Exhaustion of domestic remedies
On the basis of Article 35.1 ECHR the Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on which the final
decision was taken.
Mr Victor Adam, appealed the judgment on the basis of Evrylian courts lack of
jurisdiction in order to delete a post from another country. The petition was dismissed

Tauira and 18 others v. France, no. 28204/95, p.130, ECHR 1995

by the Evrylian Appeal Court and consequently, the first-instance-judgement of 20 June

2013 was confirmed.
The applicant followed a basic principle of the ECHR, according to the Court in
Demopoulos and others v. Turkey, the rule of exhaustion of domestic remedies is
therefore an indispensable part of the functioning of this System of protection. States
(...) and thus who wish to invoke the supervisory jurisdiction of the Court as concerns
complaint against a State are thus oblige to use first the remedies provided by the
national legal System3.
In order to demonstrate the Applicants compliance with the requirement of exhaustion
of domestic remedies in Evrylia (Article 35.1 ECHR) it is necessary to point out that Mr
Adam filed a complaint before the Appeal Court of Evrylia on the grounds of lack of
jurisdiction of the First Instance Court, whose resolution forced the applicant to delete a
message on his blog.
The applicant fullfiled the rule of exhaustion of domestic remedies as it was hold in A,
B, and C v. Ireland: under Article 35 1 it may only deal with a matter after all
domestic remedies have been exhausted. The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing which they will lack
the requisite accessibility and effectiveness4. The main reason of this exhaustion is that
an injunction from the Evrylian courts can only be appealed once, according to the
provisions of the Criminal Code of Procedure concernint the interim measures taken
during the criminal proceedings.
Also, the rule of exhaustion of domestic remedies must be applied with flexibility and
without excessive formalism as established in Ringeisen v Austria5. Moreover, in the
case Kozacioglu v. Turkey, the Court stated that the rule exhaustion is not absolute nor
capable of being applied automatically, and it is essential to have regard to the
circumstances of the individual case6. This means, in particular, that the Court must
3

Demopoulos and Others v. Turkey (dec.) [GC], 69 nos. 46113/99

A, B and C v. Ireland [GC], no. 25579/05, 142, ECHR 2010

Ringeisen v. Austria 22 June 1972, 89, Series A no. 15

Kozacioglu v. Turkey [GC], no. 2334/03, 40, 19 February 2009

take realistic account of the general context, as well as the personal circumstances of the
applicant as it was held in Dh and others v Czech Republic 7.
In the State of Evrylia, there is no possibility to bring constitutional complaints, which
means that the applicant did everything that could reasonably be expected of him to
exhaust domestic remedies taking into account all the circumstances of the case as the
Court established in Ilhan v. Turkey case 598
3. Compliance with the six-month time limit
On the other hand, we took into acount the admissibility criteria of the six-month timelimit set up in Article 35.1 of the Convention which establishes that the Court may only
deal with the matter after all domestic remedies have been exhausted, according to the
generally recognised rules of international law, and within a period of six months from
the date on which the final decision was taken.
The starting date for the running of the six-month period was on 20 March 2013 when
the Appellate Court dismissed the Applicants appeal and confirmed the first-instancejudgment, which became final. Following this rule, the deadline to submit the
application would be 20 September 2013. In addition, the application before the
European Court of Human Rights (ECtHR) on 30 July 2013, consequently, the
application is submitted on time.
4. Lack of jurisdiction of the Evrylian Courts
Article 1 of the Convention states that the Contracting Parties must act within the limits
of their own jurisdiction to protect their citizens. The ECtHR has ruled in favour of
extra-territorial jurisdiction, as in Al-Skeini and others v. The United Kingdom stating
that a State could exercise extra-territorial jurisdiction when it held effective control of
an area outside its borders and that an Iraqi in the actual custody of British soldiers in
a military detention centre in Iraq was within the United Kingdom's jurisdiction under
7

D.H. and Others v. the Czech Republic, no. 57325/00, 116, 7 February 2006

Ilhan v Turkey\[GC], no. 22277/93, 59, ECHR 2000-VII

Article 1 of the Convention. Likewise, the International Court of Justice wrote that the
international human rights instruments were capable of having an extra-territorial
application, particularly in occupied territories9.
In those cases the physical presence of a State in a territory of another State has made it
unproblematic to consider when the jurisdiction can be exercised across the borders.
Unlike other ways of having presence in a country, the Internet does not appear
physically but abstractly, making it an arduous task to determine whether or not states
can exercise extra-territorial jurisdiction when the information is spread through the
Internet.
The State of Evrylia had no jurisdiction when stated its actions against Mr Adam, who
is a resident of the State of Favonia. As the ECtHR hold in Perrin v. the United
Kingdom the applicant was a resident of the United Kingdom. As a result, he cannot
argue that the laws of the United Kingdom were not reasonably accessible to him10.
Therefore, Mr Adam, as a resident of the State of Favonia, had the only duty to know
and act not against his place of residence law.
As the Court understood in Mller v. Switzerlanda norm cannot be regarded as a "law"
unless it is formulated with sufficient precision to enable the citizen - if need be, with
appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail11 . Consequently, the Applicant,
according to the circumstance of being a resident of the State of Favonia, fulfilled the
requirement of acting according to the law that he had to comply with.
Due to the worldwide nature of the Internet, it is unreasonable for publishers to foresee
the legal requirements in all the individual states where posted information can be read.
There was a lack of jurisdiction of the Evrylian courts to make this post be deleted due
to this very nature of the Internet; it is not possible to control the place of origin of the
readers and their specific legislation.
9

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory

Opinion, I.C.J Reports 2004 (9 July 2004).

10

Perrin v. the United Kingdom (dec.), no. 5446/03, p.5, ECHR 2005-XI

11

Mller v. Switzerland, no. 41202/98, 29, 5 November 2002

The notion of extra-territorial jurisdiction has to be reconsidered from the new

technologies perspective, which makes the material boundaries between States a
vulnerable concept. The requirements the States have to fulfil when exercising their
jurisdiction beyond the borders are based on materiality criteria that cannot be applied
when it comes to the Internet.
II. STATEMENT OF THE ALLEGED VIOLATIONS
1. Paragraph 1 Article 10
a. Violation of article 10 of the Convention: Freedom to impart and
receive information and ideas.
Article 10.1 ECHR: Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This article shall
not prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
The Court describes freedom of expression as one of the basic conditions for the
progress of democratic societies and for the development of each individual, and the
first paragraph of article 10 refers to that freedom specifically, stating that it ought to be
guaranteed and exercised freely, without any interference of the authorities.
By closing the Blog the Evrylia Court has both injured the journalist's freedom of
communication as well as the right of the public follower of his to keep reading. Both
rights are therefore complimented thus violated: Freedom to impart and freedom to
receive.
As a matter of fact, the Court has fully expressed that States ought to not come in
between the transmitter and the receiver because both have the "right to get into direct
contact with each other according to their will" being true that aspect regarding printed
media as well as broadcast media.

This Part stresses upon the fact that the State has indeed intervened banning
communication between transmitter and receiver from the day Mr. Adam is not torn
only from his job, but punished by doing such.
Another aspect of significant relevance is that by writing this article, Mr. Adam has
contributed once more to provide his readers with information of public interest, that he
has been carrying about for quite a long time now, with neither problems nor
disturbances.
Living in a democratic society, which is what prevails in the Evrylian Constitution, the
State should permit information of general interest to be delivered, all the more reason if
that person responsible for that task contributes and has been doing so in order to
perfect those constitutional rights the country so prides on having.
In Jersild v Denmark the Court held that freedom of expression constitutes one of the
essential foundations of a democratic society and that the safeguards to be afforded to
the press are of particular importance.
Whilst the press must not overstep the bounds set, inter alia, in the interest of "the
protection of the reputation or rights of others", it is nevertheless incumbent on it to
impart information and ideas of public interest.
Not only does the press have the task of imparting such information and ideas: The
public also has a right to receive them. Were it to be otherwise, the press would be
unable to play its vital role of public watchdog12.
b. Violation of article 10 of the Convention: Freedom of press.
In 1986, the Court stated in Lingens v Austria that the press have the task of imparting
such information and ideas: The public also has the right to receive them.13

12

Jersild v. Denmark, 23 September 1994 , 31 , Series A no. 298.

13

Lingens v. Austria, 8 July 1986 41, Series A no. 103.

10

Jurisprudence on the matter has made huge progress given the fact that nowadays it is
not compulsory to refer and publish the source of information, moreover, the change has
been such, to the point of protecting the confidentiality of journalistic sources.
The Court makes a clear distinction between information (facts) and opinions (value
judgements), and has stated that the existence of facts can be demonstrated, whereas
the truth of value judgements is not susceptible of proof As regards value judgments
this requirement is impossible of fulfilment and it infringes freedom of opinion itself,
which is a fundamental part of the right secured by Article 10 of the Convention
Additionally in Dalban v. Romania, the Court stated that "it would be unacceptable for
a journalist to be debarred from expressing critical value judgments unless he or she
could prove their truth".14
Since the journalist is under no obligation of having to prove his source, whether facts
or opinions, makes the interference from the State all the more irrelevant, concluding
that whether what he publishes is based on true facts or only rumours makes absolutely
no difference. Therefore IT should not be punished as it has been, and constitutes
another proof that by banning access to his Blog the Courts of Evrylia have infringed
the right of freedom of expression.
For once, Mr. Adam is not obliged to prove his source, the Court has stated that, and
this Part has argued suchlike previously, that although apologizing for the damage both
personal and professional, that his article may have caused to David K., it should be the
other part to prove the article is based on a false trail.
The European Court of Human Rights has repeatedly emphasized () that aside from
the information itself (as in content), article 10 also protects the means in which thus
has been transmitted, the means being the Blog here the object of protection.
Article 10, is also characteristic for protecting those expressions, which may carry a risk
of damaging the interests of others. The opinions shared by the majority do not run the
14

Dalban v. Romania [GC], no. 28114/95, 49 , ECHR 1999-VI.

11

risk of being interfered by States, but Article 10 further covers information and opinions
expressed by small groups or those of an individual alone, which can be applied to this
particular case, even in the event such information shocks the majority.
On that aspect the Court remarked in its Handyside v. the United Kingdom judgment,
and reiterated in its Sunday Times judgment that the information or ideas that are
favorably received or regarded as inoffensive or as a matter of indifference is protected
by Article 10, but also those that offend, shock or disturb, such are the demands of that
pluralism, tolerance and broad-mindedness without which there is no democratic
society.15
This means, amongst other things, that every "formality", "condition", "restriction" or
"penalty" imposed in this sphere must be proportionate to the legitimate aim pursued.
Until now, Mr. Adams rights have been clearly neglected.
Not only that, but it has yet to be proved, in front of this Court, that the States reasons
for interfering are legitimate.
Mr Adam has clearly stated that all comments would be welcomed and that none of
them would be erased but that does not imply that he should be accountable for the
comments posted subsequently, nor does it mean he holds the same opinion.
In Jersild v. Denmark, just like the present case, the television program, which covered
a general interest subject, was just inviting a group of people to express their point of
views on a newsworthy subject at the moment, but should not be held responsible for
racist comments made by others in their broadcast.The ECHR justified the appearance
on the TV show of those racist groups claiming that the subject was of general interest
and showed the reality of the racism situation in Denmark, this part can certify that the
information written by the journalist was published because prostitution and drug use in
the presence of underage has enough relevance to be considered of general interest.16

15

Handyside v. the United Kingdom, 7 December 1976, 48, Series A no. 24.

16

Jersild v. Denmark, 23 September 1994, Series A no. 298.

12

The intentions when making that post available on his blog were none other than to
inform about facts that are of public interest involving David K but never encouraging
hatred speech against the Kroopa community, since the relation between them is never
mentioned in the post.
This argument is further explained in a similar way by the Court in the Jersild v
Denmark: He went on to announce that the object of the programme was to address
aspects of the problem, by identifying certain racist individuals and by portraying their
mentality and social background. There is no reason to doubt that the ensuing
interviews fulfilled that aim. Taken as a whole, the feature could not objectively have
appeared to have as its purpose the propagation of racist views and ideas.17
2. Paragraph 2 Article 10
a. Violation of article 10: The three requirements for legitimate
interference not being proved.
Article10.2 ECHR: The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.
The first requirement to legitimate a States interference is that a regulation prescribes
that condition, restriction, limitation. So far, that exists.
Secondly, any interference is legitimate as long as the one who has disturbed that right,
the State in this case, proves that its intervention responds to the legitimate protection of
national security, public security, prevention of disorder or crime or to protect moral,
17

Jersild v. Denmark, 23 September 1994, 33, Series A no. 298.

13

reputation and rights of others, still to be proved and up to date it has not been done as
such.
Thirdly, the State whose responsible for the intervention must prove that it is necessary
to do so in a democratic society, because of incitement to violence or because of
hatred speech. The adjective necessary, within the meaning of Article 10 2, implies
the existence of a pressing social need.
The ECHR in Zana states that freedom of expression loses its protection whenever the
information to be transmited justifies, aproves, incites hatred, violance or intolerance of
any kind.18
In the present case, the public manifesto of Mr. Adam does not trigger hatred speech
comments of any kind, not as described in Surek v Turkey (1) as glorification of
violence, where the ECHR justifies the interference when hatred is incited.19
And in the same ruling the Court reiterates that the mere fact that information or
ideas offend, shock or disturb does not suffice to justify that interference.
For the reasons above mentioned, the interferences are not legitimate.
b. Violation of Article 10 for not establishing proportionate measures.
Mentioned previously in Dalban is the fact that the journalist does not have to prove his
source in order to communicate.
In Delfi AS v Estonia, the Court reveals that freedom of expression can only be
interfered, thus limited, by member States in order to protect a persons reputation. But
only provided that the interference is proportionate to the circumstances.
Here, as well as there, the question is whether the measures taken to protect private life
are proportionate.20

18
19

Zana v. Turkey, 25 November 1997, 57 to 61, Reports of Judgments and Decisions 1997-VII.
Srek v Turkey (1) no. 23927/94 and 24277/94 61 and 62, 8 July 1999.

14

While it would be legitimate to intervene, if the connection were to be proved, a

proportionate measure to the harm done would be to pay for the damage infringed to the
particular.
When it comes to the term of proportion, as a matter of fact, in Engel and Others v The
Netherlands a ban on the publication and distribution of a paper criticizing senior
officers by soldiers is found by the Court as justified and legitimate interference with
freedom of expression, although the same Court added that there was no question of
depriving them of their freedom of expression but only of punishing the abusive
exercise of that freedom of their part.21
Taking that into consideration, this Part states that the measures taken have not been
proportionate, the Evrylia Courts have already punished Mr. Adam, there is long proof
about such, yet he has still been deprived of his right to freely express.
3. Violation of Article 6
a. Violation of Article 6 (1) of the Convention: right to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law.
The Evrylian Prosecutor General is conducting a criminal investigation to understand
that the applicant has committed an offense of incitement to "hate speech" contained in
the state legislation on the subject. The result of this investigation is that the Evrylian
Court has adopted an interim measure of blocking access to the applicants Bbligg from
Evrylia and closing the Phrendbook group forum of EvryFav Media and his
Phrendbooks profile.
The Evrylian Telecommunications Directorate (ETD), prior request from a court order,
adopted this measure, justifying it as appropriate in accordance with the Law adopted
by the State of Evrylia concerning Internet publications and Internet offences

20

Delfi AS v. Estonia, no. 64569/09, 10 October 2013.

21

Engel and Others v. The Netherlands, 23 November 1976 98 to 101, Series A n 22.

15

prevention.
Article 6.1 of the ECHR states that everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established by law.
This Article has been infringed for the below set out reasons.
As the Court held in Gorraiz Lizarraga and others v. Spain, in order for Article 6.1 to
be applicable there must be a dispute over a right that can be said, at least on
arguable grounds, to be recognised under domestic law22. According to this, Article 6.1
can be applied as the requirement of a dispute over a right has been fulfilled. The
right disputed is the freedom of expression enshrined in Article 10 ECHR.
In Mantovanelli v. France the Court held that one of the elements of a fair hearing
within the meaning of Article 6 para. 1 (art. 6-1) is the right to adversarial proceedings;
each party must in principle have the opportunity not only to make known any evidence
needed for his claims to succeed, but also to have knowledge of and comment on all
evidence adduced or observations filed with a view to influencing the courts
decision.23
In line with what has been stated above, the interim measure was adopted unilaterally
by the Court and implemented by the ETD. No opportunity of any hearing was given to
the applicant, even to put some arguments in his own defence. In this sense it is
submitted that Article 6.1 of the ECHR has been so gravely breached. This is because
the applicant was not given the opportunity to defend himself. No hearing was held and,
consequently, the applicant has not been given the chance to make the appropriate
defendant claims.
Therefore, the interim measures taken by the State of Evrylia were not taken in
accordance with the ECHR and the case-law of the ECtHR due to the fact that the
applicant suffered a violation of the right to a fair trial and its right to adversarial
proceedings, as he could not pronounce himself regarding to the adoption of the

22

Gorraiz Lizarraga and Others v. Spain, no. 62543/00, 43, ECHR 2004-III

23

Mantovanelli v. France, 18 March 1997, 33, Reports of Judgments and Decisions 1997-II

16

measure.
b. Violation of Article 6 (3): (b) to have adequate time and facilities for the
preparation of his defence and (c) to defend himself in person or
through legal assistance.
The Evrylian Court has led the applicant to a state of helplessness, violating the right to
defend himself and the right to have time to prepare a defence, established in
subparagraphs b) and c) from the third paragraph of the Article 6 of the ECHR.
Furthermore, the fact that any hearing was held or that he has not been transferred to
make the pertinent claims is a violation of the right to a fair hearing that recounts the
first paragraph of the Article 6 of ECHR. However, the Appeal Court who dismissed his
appeal on the basis of the same arguments as the First Instance Court ignored this
serious procedural obstacle.
The State of Evrylia adopted unilaterally a clearly burdensome action, but not only for
the applicant extent, but many professionals have been adversely affected by the action
taken by the Court. So much so, that many journalists tried to appeal the decision to the
Court that, once again, dismissed the claim. The blogs that have been closed are part of
their working tools, and they have been deprived from them, representing a serious
injury in his working life and, consequently, has also hurt the rest of professionals who
were in them.
It makes no sense that the Court has erased the Phrendbook group forum of EvryFav
Media and the Phrendbooks profile, since these forums have nothing to do with what is
investigated in the case, as the comments endorsing "hate speech" were performed
through Bbligg, and not in these forums. Thus, the measure is disproportionate and
unlawful, as how it was its adoption process.
In this direction, at no time the applicant has been asked to delete the Bbligg comments,
but simply opted to block him, directly depriving him, as discussed in the previous
section, from the right to freedom of expression enshrined in the Article 10 of the
ECHR.
17

c. Violation of the Article 6 (2): Everyone charged with a criminal offence

shall be presumed innocent until proved guilty according to law
Fruit of the reasons stated above, the applicant's right to innocence established in the
second paragraph of the Article 6 of the ECHR has been violated.
The Court stated in Yassar Hussain v. the United Kingdom that the presumption of
innocence enshrined in Article 6 2 is one of the elements of a fair criminal trial
required by Article 6 1. It will be violated if a statement of a public official
concerning a person charged with a criminal offence reflects an opinion that he is guilty
unless he has been proved so according to law24.
This applicant's right has been violated in the measure that, for the moment, he has not
been given a chance to defend himself and, therefore, the Court has adopted, by the
direction being taken by the investigation, the decision to convict him guilty for some
facts that have not even been proven.
The causal relationship between the events of March 2010 and the applicant does not
exist, except that the Internet site in which they occur is of the applicant's property.
Still, the Evrylian Court insists on saying, under cover of the said law, that the applicant
itself is guilty without any weight evidence and adopting a disproportionate measure to
solve it.
If we were in the case that it existed a causal link between the events in March 2010 and
the applicant, why was not him asked to delete the Bbligg comments? It is true that in
civil proceedings against the applicant, it was stated that an Article he had published
will be erased, but nothing clear was said about the comments endorsing "hate speech".
The investigation has not been initiated until September 2010, six months after the
incidents occurred and the measure is not adopted until June 2013. However, instead of
seeking the least harmful measure to the plaintiff, it has been chosen to deprive him of
24

Yassar Hussain v. the United Kingdom, no. 8866/04, 19, ECHR 2006-III

18

one of his working tools injuring not only the applicant but also to a large number of
journalists participating in the forum.
To sum up, Mr Adam is a victim of a breach of the Convention as his right to a fair trial
has been violated. Moreover, his right to innocence has been infringed too, due to the
State of Evrylia has executed the interim measures that conclude that the applicant is
liable before proving so. That is to say, Mr Adam has been considered a hate speech
endorser when it has not been proved that there is causality between the Article
published by him and the comments that caused the implementation of the measures by
the State of Evrylia.

19

TABLE OF CONTENTS

Table of contents .............................................................................................................1
List of references .............................................................................................................1
I. Conventions and Treaties ..................................................................................1
II. Jurisprudence .....................................................................................................1
III. Secondary sources ..............................................................................................2
List of abbreviations .......................................................................................................3
Statement of facts ............................................................................................................3
Legal pleading..................................................................................................................4
I. Admissibility of the claim ..................................................................................4
1. Victim Status ...................................................................................................4
2. Non-exhaustion of domestic remedies ............................................................6
3. Non-compliance with the six-month time-limit ............................................10
4. Extra-territorial jurisdiction.............................................................................4
II. Statements of the alleged violations................................................................12
1. Protection of the Right to respect for private and family life........................12
2. Legitimate interference with Mr. Adam's freedom of expression .................14
3. Violation of the principle of non discrimination ...........................................17
4. Responsibility for the offensive comments against the Kroppa community.18
LIST OF REFERENCES
I. CONVENTIONS AND TREATIES

Convention for the Protection of Human Rights and Fundamental Freedoms, (entered
into force 3 September, 1953)
II. JURISPRUDENCE

A v. Norway, no. 28070/06

Akdivar and Others v. Turkey

Burden v. the United Kingdom [GC], no. 13378/05

Cantoni v. France
1

Chauvy and Others v. France, no. 64915/01

Chauvy et al. v. France, no. 64915/01

De Wilde, Ooms and Versyp v. Belgium, Series A no. 12

Delfi AS v. Estonia, no. 64569/09

Demopoulos

and

Others

v.

Turkey

nos.

46113/99,

3843/02,

13751/02,

13466/03,10200/04, 14163/04, 19993/04 and 21819/04

Erbakan v. Turkey, no. 59405/00

Fressoz and Roire v. France [GC], no. 29183/95

Gfgen v. Germany [GC], no. 22978/05

Gorraiz Lizarraga and Others v. Spain, no. 62543/00

Lingens v. Austria, Series A no. 103

Paa and Erkan Erol v. Turkey, no. 51358/99

Perrin v. the United Kingdom (dec.), no. 5446/03

Pfeifer v. Autriche, no. 12556/03

Recommendation No. R (97) 20 of The Committee of Ministers to member states on

Hate Speech:
http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec%281997%29020&expm
em_EN.asp

Saghinadze and Others v. Georgia, no. 18768/05

Soulas et al. v. France, no. 15948/03

Tauira and 18 others v. France, no. 28204/95

Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 157, ECHR 2009

Vartic v. Romania (no. 2), no. 14150/08

III. SECONDARY SOURCES

Practial Guide on Admissibility Criteria, Research Division, European Court of

Human Rights, 2011

KILKELLY, URSULA. A practical guide to the implementation of article 8,

European Convention of Human Rights. The right to respect for private and family
life, 2003.

VANDENHOLE, WOUTER. Judgements and Documents, Faculty of Law

Universiteit Antwerpen, 2013.
2

CASADEVALL, JOSEP. El Conveni europeu de drets humans, el Tribunal

d'Estrasburg i la seva jurisprudncia, 2007.

Rules of Court, European Court of Human Rights, July 2009

LIST OF ABBREVIATIONS
Art.

Article

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

ETD

Evrylian Telecommunications Directorate

STATEMENT OF FACTS
Firstly, in March 2010, Mr Victor Adam, a very well know journalist, posted an article
on his blog, with a wide coverage and referred to in the media, about the personal life of
a famous Evrylian footballer, David K. This article received a big amount of offensive
comments against the Kroppa community, which, subsequently, made that there was
violence with Favonian residents in Evrylia during the protest of the Kroppa community
in Evrylia in front of the Favonian Embassy. Eventhough, the applicant did not delete
any of the impugned posts appearing on his blog and, moreover, the journalist posted a
link on his Private Phrendbook profile wall and on the journalists forum group EvryFav
Medium in line with common practice.
Secondly, David K brought civil proceedings against the applicant before the Evrylian
courts, claiming damages and demanding the deletion of the offending article and the
publication of an apology. Also argued that the article was defamatory, he suffered the
cancellation of several publicity contracts, the threat of suspension by Selsee Football
Club for whom he played, and his fiance left him as a result.
Thirdly, in September 2012, the Evrylopol Tribunal ordered Mr Victor Adam to pay
damages, to delete the blog post and to publish an apology concerning the unproved
presumptions (involvement in drugs and prostitution) regarding the rights of privacy
and family life and the loss of income due to the cancelled contracts.
3

Fourthly, Mr Adam appealed the judgment but the appellate court dismissed the appeal
and confirmed the first-instance judgment, which became final on 20 March 2013.
Despite the fact, he refused to delete the post, which made that the Evrylian Tribunal
ordered Mr Adam to pay a fine for each of delay.
Fifthly, the Evrylian Prosecutor Generals filed for an injunction to have the blog post
blocked together with any subsequent reference to it. The injunction was granted and an
order was sent to the Evrylian Telecommunications Directorate (ETD) to implement it.
Also, Mr Adam appealed the injunction before the appellate court, which dismissed his
appeal on June 2013. Then, access to the applicants personal blog was blocked in
Evrylia.
Lastly, Mr Adam brought an application before the ECHR asking to recognize a
violation of Mr Adams rights and freedoms protected by the Convention, even if the
criminal investigation against Mr Adam is still pending before the prosecutors office.
LEGAL PLEADING
I. ADMISSIBILITY OF THE CLAIM
1. Victim Status
The ECHR on its Article 34 determines that the Court may receive applications from
any person, non-governmental organisation or group of individuals claiming to be the
victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto. According to this, in order for a complainant to
submit an application to the Court, it is necessary that the applicant is considered a
victim of a breach of the Convention.
It is well established, as it was pointed out by the Court in Gorraiz Lizarraga and
Others v. Spain1, that in order for an applicant to be able to claim to be a victim of a
violation of the Convention, there must be a sufficiently direct link between the

1

Gorraiz Lizarraga and Others v. Spain, no. 62543/00, 35, ECHR 2004-III

applicant and the harm which they consider they have sustained on account of the
alleged violation. Mr Adam cannot be considered a victim in the sense that the Court
interprets this notion because he has not suffered a harm that allows the existence of
such direct link.
Firstly, the measure executed by the State of Evrylia consisting on blocking the
Applicants personal blog had an effect just on the Evrylian citizens, and therefore not
on Mr Adam, as a resident of Favonia. The State of Evrylia, when executing such
measure, was trying to ensure the fundamental rights of its nationals and securing the
enforcement of its national law. The harm claimed by the Applicant cannot be
considered as such, since it does not affect his professional activity nor his personal
sphere.
The Court stated in Tauira and Others v. France2 that the applicants' allegations have
not been sufficiently substantiated for the Commission to conclude, prima facie, that
they can claim to be the victims of a violation of the Convention, given that to date the
presumption of the lasts has had only potential consequences which are too remote to be
considered to be an act directly affecting their personal situation. For that reason, Mr
Adam cannot be considered a victim of a violation of the Convention due to the lack of
direct harm suffered by him; the fact that the access to his personal blog was blocked in
Evrylia is a too remote effect to be considered to directly affect him and hence, to be
considered a harm.
Morover, according to Article 35.3.b) of the Convention, the disadvantage suffered by
the applicant has to be significant. In Vartic v. Romania the Court held that this criterion
hinges on the idea that a violation of a right, however real from a purely legal point of
view, should attain a minimum level of severity to warrant consideration by an
international court3. Consequently, the measure consisting on blocking the personal
blog cannot be considered as harm in accordance to the criteria established by the Court.

Tauira and 18 others v. France, no. 28204/95, p.133, ECHR 1995

Vartic v. Romania (no. 2), no. 14150/08, 38, 17 December 2013

Secondly, the taken down of the profile did not have an effect directly on Mr Adam, as
such profile was mainly employed by a group of professionals. Consequently, Mr Adam
cannot claim to be a victim given that the measure had no impact on his individual
interests. The Applicant cannot be regarded as being a victim of a breach of the
Convention as there is no harm caused to Mr Adam; there is a lack of the requirement of
causality between the victim and the prejudice. It is submitted that the measure taken by
the State of Evrylia consisting on the taken down of the Phrendbook profile cannot be
considered a harm either.
The Court has also held in Paa and Erkan Erol v. Turkey4 that when an applicant is
partly responsible for the violation that alleges, he or she cannot be considered to be a
victim. As a national of the State of Evrylia, Mr Adam should have the duty to know
and to act according to its national law. In addition, as described further on, the Court
has stated the professionals duty to take legal advice when carrying out their
occupational activities5 in Perrin v. the United Kingdom. Mr Adam, as a professional
journalist, had the duty of taking the appropriate advice of the Evrlylias legislation on
anti-hate speech. For that reason, he is responsible for the breach of the Convention that
he alleges, and therefore, he cannot be considered as a victim of such.
2. Non-exhaustion of domestic remedies
On 30 July 2013, the applicant Mr Adam brought an application before the ECHR even
though the criminal investigation against the applicant under the legislation on hatespeech and the protection of national minorities is still pending before the prosecutors
office since 20 September 2012, whose consequences could be an imprisonment of six
to three years.
Article 35.1 ECHR states that the Court may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on which the final
decision was taken.

4

Paa and Erkan Erol v. Turkey, no. 51358/99, 22, ECHR 2006

Perrin v. the United Kingdom (dec.), no. 5446/03, p. 5, ECHR 2005-XI

The State of Evrylia must waive the benefit of the rule of exhaustion of domestic
remedies, the essential aim of which is to protect the national legal order as it was
established in De Wilde Ooms and Versyp v. Belgium, where the Court held that there
exists on this subject a long established international practice from which the
Convention has definitely not departed as it refers, in Article 26, to the generally
recognised rules of international law6".
Related to the efficient and available domestic remedies must be taken into account
what the Court said in Akdivar and Others v. Turkey it is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the remedy was an
effective one available that it was accessible, was one which was capable of providing
redress in respect of the applicant's complaints and offered reasonable prospects of
success7.
In Evrylia the Kroppa population is integrated as a result of a long process of political
action and the implementation of a protective legal framework. Furthermore, the
Evrylian State is a member of the Council of Europe and it has also ratified all existing
Protocols of the Convention, which shows a legal certainty in the circumstances that
involves the case.
Also, in Akdivar and Others v. Turkey the Court sentenced that it must take realistic
account not only of the existence of formal remedies in the legal system of the
Contracting Party concerned but also of the general legal and political context in which
they operate as well as the personal circumstances of the applicants8.
Firstly, about the political context in Evrylia, the Kroppa population is integrated as a
result of a long process of political action and the implementation of a protective legal
framework. Furthermore, the Evrylian State is a member of the Council of Europe and it

6

De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, 55, Series A no. 12

Akdivar and Others v. Turkey, 16 September 1996, 68, Reports of Judgments and Decisions 1996 - IV

Akdivar and Others v. Turkey, 16 September 1996, 68, Reports of Judgments and Decisions 1996 IV

has also ratified all existing Protocols of the Convention, which shows a legal certainty
in the circumstances that involves the case.
Secondly, related to the general legal context, appeals for revision in Evrylia can be
formed only if new and previously unavailable evidence is adduced, provided it is
relevant to the outcome of the case, if not all concerned parties have been brought in the
proceedings or if there were malfunctions concerning the notification of documents or
decisions to the parties. Also, there is no any possibility to bring constitutional
complaints.
Thirdly, specifically about the Criminal proceedings, the Appeal Court based its
decision to dismiss the applicants appeal against the injunction order on the provisions
of the Law concerning Internet publications and the prevention of Internet offences.
Furthermore, an injunction can only be appealed once, according to the provisions of
the Criminal Code of Procedure concerning the interim measures taken during the
Criminal proceedings.
Fourthly, during the Civil Proceedings, the Appeal Court evoked similar reasons as the
ones found by the first instance court and considered the harmful event to have taken
place on the Evrylian territory due to its direct effect produced therein, thus granting
them upon the case.
Fifthly, in civil matters having as claim a declared amount of less than the equivalent in
national coin of 3.000, the Evrylian Civil Code of Procedure establishes two
jurisdictional levels, thus making the decision of the appeal court final.
Finally, related to the personal circumstances of the applicant, he was present at the
hearing of his case when the Evrylopol Tribunal allowed Mr David K. claim on
September 2012 and he brought his arguments before the Court.
Therefore, the State of Evrylia has enough legal guarantees taking a realistic account
about the general legal and political context, as well as the personal circumstances of
the applicant already explained, which means that there is no other option than the
8

domestic remedies of the Evrylian State have to be exhausted before dealing with a
matter in Article 35 ECHR as it was established in A, B and C v Ireland9.
The Evrylian Criminal courts must have the opportunity to determine the compatibility
of domestic law with the Convention as it was sentenced in Burden v the UK if an
application is nonetheless subsequently brought to Strasbourg, the European Court
should have the benefit of the views of the national courts, as being in direct and
continuous contact with the forces of their countries10.
It must be reiterate that Article 35 of the Convention has to operate with a degree of
deference to domestic formalities as it was established in Saghinadze and Others v
Georgia 11. That means that the Evrylian prosecutors investigation must be respected in
any case. The purpose of Article 35 is to afford the Contracting States the opportunity
of preventing or putting right the violations alleged against them before those
allegations are submitted to it as it was explained in Gfgen v. Germany12.
Even if the applicant is living in Garand, the capital of Favonia, out of the Evrylian
borders, this is not an obstacle per se to the exhaustion of the Evrylian domestic
remedies as it was established in Demopoulos and Others v Turkey13 as a general rule
applicants living outside the jurisdiction of a Contracting State are not exempted from
exhausting domestic remedies within that State, practical inconveniences or
understandable personal reluctance notwithstanding.
Mr Victor Adam must exhaust domestic remedies even if he did not choose voluntarily
to place himself under the jurisdiction of the Evrylian State as it was established in
Demopoulos and Others v Turkey. The applicant must respect the principle of
subsidiarity, which is of paramount importance to ensuring the protection of rights at

10

Burden v. the United Kingdom [GC], no. 13378/05, 42, ECHR 2008

11

Saghinadze and Others v. Georgia, no. 18768/05, 83-84, 27 May 2010

12

Gfgen v. Germany [GC], no. 22978/05, 142, ECHR 2010

13

Demopoulos and Others v. Turkey 98 [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03,10200/04,

14163/04, 19993/04 and 21819/04, ECHR 2010

domestic level; where effective remedies are available, an applicant is required to make
use of them before invoking the Court's international supervision14.
3. Non-compliance with the six-month time-limit
On 20 March 2013 the appellate court decision dismissed Mr Adams petition and
confirmed the first-instance judgment, which became final.
On 20 June 2013 the applicant appealed the injunction to block him the access to his
personal blog before the appeal court, but it was dismissed and the injunction was
executed.
On 30 July, Mr Adam filed an application before the ECtHR while a criminal
investigation against the applicant is still pending before the prosecutors office since 20
September 2012.
As a consequence, the six-month period would run from the date of the final decision in
the process of exhaustion of domestic remedies, as the Court established in Varnava
and Others v Turkey the six-month rule cannot require an applicant to lodge the Court
of his complaint before his position in connection with the matter has been finally
settled at the domestic level15.
To sum up, while the criminal investigation against the applicant is still pending before
the prosecutors office, there is no chance to submit an application to the ECHR, which
means that the six-month time-limit is not applicable in this case.
4. Extra-territorial jurisdiction
On the one hand, the State of Evrylia bases its jurisdiction on the international private
law provisions in civil matters, according to which issues relating to liability for

14

Demopoulos and Others v. Turkey 101 [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03,10200/04,

14163/04, 19993/04 and 21819/04, ECHR 2010

15

Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,

16070/90, 16071/90, 16072/90 and 16073/90, 157, ECHR 2009

10

wrongful acts shall be decided by the courts of the place where the harmful event
occurred or may occur.
The publications made by Mr Adam on his personal blog and Phrendbook profile have
had consequences in Evrylia. Hence, it is stated that there has been a wrongful activity
that has had its effects in the territory of the State of Evrylia.
As Evryilia has to enforce the provisions on international private law, the conflict had to
be resolved by the Evrylian courts, in compliance with these provisions. Therefore,
Evrylia had jurisdiction to take the legal measures consisting on taking down Mr
Adams Phrendbook and the access to his blog, due to the place where the wrongful acts
took place, and thus, acted based on international private law.
On the other hand, according to what the Court held in Perrin v. The United Kingdom16,
as the Applicant was carrying on a professional activity through the Internet, it is not
admissible to allege that the effect produced by the publications in other countries was
not foreseeable. It is in the very nature of the Internet its inherent worldwide effect.
Therefore, publishers must have a high degree of caution17 when taking legal advice
in order to prevent infringements of other States law.
As the Court recalled in Cantoni v. France18, a law may still satisfy the requirement of
foreseeability even if the person concerned has to take appropriate legal advice to
assess, to a degree that is reasonable in the circumstances, the consequences which a
given action may entail. In this case, the Court established that this requirement had to
be fulfilled in relation to persons that were carrying a professional activity, when taking
legal advice.
Morover, Mr Adam is a national of the State of Evrylia, and for that reason he cannot
claim that this requirement is not reasonable to him. Mr Adam, as an Evrylian, had to be
cautious when making inquiries about the legislation of a State of which he is national.

16

Perrin v. the United Kingdom (dec.), no. 5446/03, p.5, ECHR 2005-XI

17

Chauvy and Others v. France, no. 64915/01, 44, ECHR 2004-VI

18

Cantoni v. France, 15 November 1996, 35, Reports of Judgments and Decisions 1996-V

11

Therefore, Mr Adam cannot claim that the effects of not complying with the laws of the
State of Evrylia were not foreseeable to him. As a professional journalist, Mr Adam had
to fulfil the precaution requirement to seek advice for the development of his activity.
Mr Adam had the duty to be informed of the legal effects that his publications could
have around the world, and more specifically, in the State of Evrylia.
II. STATEMENT OF THE ALLEGED VIOLATIONS
1. Protection of the Right to respect for private and family life.
Article 8 ECHR - Right to respect for private and family life:
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.
Article 8 seeks the protection in four different areas of the autonomy of individuals:
Their private lives, their family lives, their home and their correspondence. In this case,
the private live section has been violated in two matters: The reputation being the first,
and David Ks honor the second.
Pfeifer v. Autriche refers to a publication that had damaged the petitioners reputation.
The jurisprudence of the convention states the right of an individual to protect his own
reputation is covered by article 8, framed in the respect for private life. 19

19

Pfeifer v. Autriche, no. 12556/03, 35, 15 November 2007.

12

In Chauvy et al. v. France20 a petition was made by virtue of Article 10, where the
Court stated that the reputation of an individual, tamed by a published book, was
protected by Article 8 as part of the private life and should be balanced against the right
to free speech.
Blanco v. Sweden, consisting of an accusation in accordance with article 8, served to
declare one's right to protect their own reputation against defamatory declarations made
by the press, in the event that those consist of one's privacy.
In Delfi AS v. Estonia the Court reiterates that the reputations right of protection is
covered by the Article 8 of the convention.21
In A. v. Norway, the Court establishes that, in order to use Article 8, it is necessary that
the attack against ones reputation reaches a certain level of seriousness and that it is
been done in such a way that damages someone's use of the right to private life.22
Therefore, David K's reputation is protected by article 8 of the ECHR. David K.s right
to protect his reputation against the defamatory statements published by Victor Adam in
his blogs post has been clearly violated, since they directly affect his private life.
Since the information posted was about prostitution and drug use in the presence of
underage, the attacks on David K.s reputation are of a high level of seriousness, and
they were made in a way that harm his personal use of the right to private life.
The severeness of the unfounded information concerning David K's personal life
published by Victor Adam had severe consequences to his personal life, amongst them:
The cancellation of numerous advertising contracts that translated into loosing income
due to the cancellation of those; receiving a threat of suspension by the Selsee Football
Club in which he used to play, and the fact that his girlfriend ended their relationship.

20

Chauvy et al. v. France, no. 64915/01, 70, ECHR 2004-VI.

21

Delfi AS v. Estonia, no. 64569/09, 80, 10 October 2013.

22

A. v. Norway, no. 28070/06, 9 April 2009.

13

It is therefore appropriate and proportionate, in view of the circumstances, to declare the

obligation of Victor Adam to pay damages in favor of David K., the obligation to
publish a public apology since the presumptions were not proved, and for the post to be
deleted to avoid its information and defamatory comments against David K to be
accessible by others.
2. Legitimate interference with Mr. Adam's freedom of expression.
Article 10 ECHR Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
The Court estimated in Soulas et al. v. France23 and, Fressoz and Roire v. France24,
amongst others, that an interference in the practice of the freedom of expression
infringes Article 10 of the ECHR, unless it is foreseen by law, addressed to one or more
legitimate goals, referred in section 2, and that it is needed in a democratic society.
The legitimate aims of the interference must be addressed to protect national security,
public security, prevention of disorder or crime, moral protection and others rights.

23

Soulas et al. v. France, no. 15948/03, 10 July 2008.

24

Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I.

14

The sentence in Lingens v. Austria was inflicted on the grounds of a law prescription
and as a result of a legitimate intervention by virtue of the article 10.2 of the ECHR.25
Applying that resolution to the case at hand, this part determines that a legitimate
interference of the freedom of speech of the journalist Victor Adam has been made, the
same stated in article 10 of the ECHR.
That interference is legitimate given the fact that the three prerequisites mentioned
above take place:
First, it is foreseen as such by law, based on article 153 from the Evrylian Civil Code;
Second, because its focus is a legitimate goal needed in a democratic society, and last,
because it is considered that two are the purposes that justify it, those being:
1) To protect the national security and prevention of disorder or crime: Victor Adams
post and the comments against the Kroppa minority produced a protest in front of the
Favonian embassy, where conduct of violence between the citizens of Favonia and
Evrylia took place. Thanks to the interference on Victor Adams freedom of expression
Evrylia can reset the order stopping the protest and the violent episodes, therefore, it is a
justified legitimate mission needed in a democratic society.
2) To protect moral, reputation and rights of others: The publication made by Victor
Adam in his blog infringes Article 8 of the ECHR that guaranties the right to a private
and familiar life, and because his honour and reputation has been heavily damaged;
which shows us a legitimate aim needed in a democratic society.
In Delfi AS v. Estonia, the Court considers that the decision of deleting the offensive
comments made through a news statement hosted in a news website, therefore the
restriction of societys freedom of expression, was made with a legitimate aim of
protecting the reputation and rights of others.26

25

Lingens v. Austria, 8 July 1986, Series A no. 103.

26

Delfi AS v. Estonia, no. 64569/09, 77, 10 October 2013.

15

Therefore, it is considered that all the prerequisites apply for the interference of the right
to freedom of expression to be breached legitimately, and proportionately.
In Lingens v. Austria, related to the consideration of Articles 8 & 10 of the ECHR. it is
established that in order to limit the freedom of expression (Art. 10.2) the reputation of
the damaged has to be attacked; even in the case of Politicians, with less measure, since
they are under public scrutiny.27
We cannot compare a soccer's player condition to the one of a Politician, since the last
one has a detailed study of all his words and actions by journalists and general audience
and therefore limit his right to a private life and family being this a general interest
matter.
In Delfi As. v. Estonia, the Court considered that when the freedom of expression right
is balanced with the right to private life, the established criteria in the consideration
exercise must include the following: Contribution to a general interest debate; How well
known the concerned person is; The object of the report; The gathering information
method and its veracity; the content, shape and consequences of its publication and the
gravity of the penalty imposed.28
Applying the established criteria of the Court in the ponderation exercise in the case
dealt at present; the revealed aspects of David Ks private life cannot be considered
information that contributes to the general interest debate because David K is known for
his career as a football player, and the facts published were related to his private life
only, not associated with his profession.
The final intention of the publication is none other than to attack the soccer player's
reputation. The information itself is neither proved nor verified. The content is against
his privacy and has caused prejudices to his person and the public order was also altered
when the altercate took place.

27

Lingens v. Austria, 8 July 1986, 36, Series A no. 103.

28

Delfi AS v. Estonia, no. 64569/09, 83, 10 October 2013.

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The authorities have reached a fair balance with the protection of both values
guaranteed by the Convention: Freedom of expression as protected by Article 10 and
David K's right to reputation, granted by Article 8 of the Convention. Therefore the
warrant presented by the attorneys general office of Evrylia in order to block the blog
post and all its references is considered to be proved and justified.
3. Violation of the principle of non-discrimination.
Protocol No. 12 ECHR. Article 1 General prohibition of discrimination:
1 The enjoyment of any right set forth by law shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other
status.
2 No one shall be discriminated against by any public authority on any ground such as
those mentioned in paragraph 1.
In Erbakan v. Turkey 56, the claimant was punished for declarations classified by
National Courts as Hate speech. 29
The Court highlighted that tolerance and respect for equal dignity of all human beings
forms the bases of a democratic and plural society.
This fact proves that in certain democratic societies to promote or justify hate based on
intolerance (including religious) is needed for punishment or prevention of all forms of
expression to occur. Making sure that this formalities, conditions, restrictions and
punishments are in the same level of the legitimate goal pursued.
On October the 30th 1997, the Committee of Ministers of the Council of Europe passed
the Recommendation (97) 20 about hate speech and its appendix.30

29

Erbakan v. Turkey, no. 59405/00, 56, 6 July 2006.

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The recommendation adopted by the CM emerged from the will of Europe to take
measures against racism and intolerance, specifically against all forms of speech
existing, instate, promote or justify racial hate, xenophobia anti-Semite behavior and
other hate expressions based on intolerance.
The Committee of Ministers suggested that the governments of the member States
should be inspired by certain principles with regard to the fight against hatred
incitement.
In this particular case, this Part considers that the journalist Victor Adam is accountable
for inciting the vast majority of the offensive, racist, and hate comments against the
Kroppa community.
The States are under the obligation of punishing any signs of incitement to hatred,
therefore Evrylias reaction to block Victor Adams blog (The one hosted in Blingg and
the one hosted in Phrendbook) is not only correct but necessary; This measure certainly
will avoid future and continuous damage to the Kroppa minority with discriminatory
comments and offenses to be publicly displayed in such a universal and immediate
media that is the internet.
4. Responsibility for the offensive comments against the Kroppa community.
The journalist, having the right to allow or not comments in his posts, should be
responsible for those that can spread from there.
The creators of those blogs can decide whether they want to allow or not comments in
there, also stating if those comments can be made anonymous or not.

30

Recommendation No. R (97) 20 of The Committee of Ministers to member states on Hate Speech:

http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec%281997%29020&expmem_EN.asp

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Therefore, letting the users to comment without being identified makes it really hard for
a damaged person to go to Court to present damages against the anonymous bloggers.
Since it is Victor Adam's blog, despite being offered by the Blingg platform, he is the
one offering a space for those comments by writing his own sections. Albeit the
journalist stated that all kind of comments would be allowed does not detach him from
the responsibility of any them, specially if they are of discriminatory nature.
Non-discrimination is a fundamental principle that has to be protected in all its aspects,
so the journalist is accountable for letting those racist comments to remain in his blog
by not removing them when it was clear that a minority was being damaged by them.
He can be guilty by not acting accordingly, avoiding the duty of care towards his
readers, for not reviewing the comments, and accountable for omission by not deleting
them.
When comments are made in blog entries, those are forwarded to the creators of the
blog for his own information / verification. The author could have acted with the
diligence expected of his profession and delete those since the moment they were first
posted, avoiding them to be accessible to the readers of the blog, damaging the right to
non discrimination foreseen in Article 1 of the Protocol No. 12 to the ECHR.
The Journalist, by deciding to allow those comments to be made by anonymous
unregistered users in his blog, admits the responsibility of all of them. This implies that
Victor Adam has to be held liable for the offensive comments made against the Kroppa
community since he is the one that has permuted and incited them.
Being this an important blog with a valuable repercussion, and the nature of the story
the journalist knew that it would have a massive reach, being able to foresee the
negative comments that would be made against different subjects on the life of the
soccer player, one of them being his membership to the Kroppa minority.
In Delfi AS v. Estonia the Court establishes that: Any information communicated via
the Internet spread so quickly that by the time the inappropriate comments were finally
deleted the public interest in the given news and the comments posted on it had waned.
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Measures taken weeks or even days later for protecting a persons honor were no longer
sufficient, because offensive or unlawful comments had already reached the public and
done their damage. 31
Since controlling the Internet was an impossible task for an ordinary person, the party
with control over a specific portal had the duty to take action where necessary to
prevent violation of personality rights.
In Delfi AS v. Estonia, the Court considers that the petitioner company, throughout the
publication of a news story, could have been foreseen that it could cause negative
reactions against the aggrieved company and its solicitors.32

31

Delfi AS v. Estonia, no. 64569/09, 63, 10 October 2013.

32

Delfi AS v. Estonia, no. 64569/09, 86, 10 October 2013.

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