The ECtHR found a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECtHR found a violation of the requirements of Article 10 of the Convention for the Protection of Human Сведения: 2018-07-21 05:36:05

ECHR Ordinance of June 15, 2017 in the Independent Independent Newspapers (Ireland) Limited Company case against Ireland "( application No. 28199/15).

In 2015, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Ireland.

In the case, the complaint on the lack of adequate and effective guarantees in respect of compensation for damages, awarded on the libel suit, was successfully considered. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.



The public relations consultant L. sued the applicant company, which, during the period relevant to the case, published the newspaper Evening Herald. L. appealed to the court after a series of articles criticizing her business and moral qualities in connection with the award of state contracts. L. brought an action in civil proceedings against the applicant company in connection with defamation, and the jury decided in her favor. On the issue of compensation for damages, the judge who considered the case gave the jury's advice to the jury in accordance with Barrett's rules, which were established by the Supreme Court in 1986 (Barrett v. Independent Newspapers Limited, 1986, IR13 ) He did not give specific instructions to the jury about the appropriate level of compensation, stressed the limited nature of the instructions that he could give, and noted in general terms that when assessing the jury's losses the jury must take into account the actual situation the current time, the cost of living, and the value of money. "He warned jury members that they should not be" defeated by a sense of generosity. "The jury members assessed damages amounting to 1,872,000 euros .In appeal, the Supreme Court overturned compensation as excessive and carried out own loss estimate of € 1,250,000.

In the conventional proceedings, the applicant company complained that the compensation recovered from it was excessive and demonstrated the lack of adequate and effective guarantees in the country's law in violation of its right to freedom of expression in accordance with Article 10 of the Convention.


The recovery of damages from the applicant company constituted a restriction on the exercise of the right to freedom of expression, and this interference was provided for by law and was intended to protect the reputation and the right to respect for private and family life. With regard to the question of whether the interference could be considered "necessary in a democratic society", the Court, following its approach in the Independent News and Media case, considered the adequacy and effectiveness in the circumstances of the applicant company's case state guarantees against disproportionate penalties. The Court noted in this connection that unpredictably high compensation for damages in defamation cases was seen as a way to exert a deterrent effect, and thus required the most careful monitoring and very weighty justification. The effectiveness or ineffectiveness of guarantees in the first instance, the resulting unpredictability of the amount of compensation for losses, which was not solely a reflection of the unique facts of each case, significant costs and delays caused by the appeal, and, in case of cancellation of compensation, by reviewing the case were relevant considerations.

(i) The first guarantee is the parting of the jury. In the first instance, this guarantee took the form of a jury's jury's advice on how to assess the amount of compensation for damage to be awarded. The Court recalls that in the context of defamation cases, although the assessment of compensation for damages carried out by a jury can be inherently complex and uncertain, the uncertainty must be minimized, and the nature, clarity, and volume of the jury's keynote speeches were key in this respect. In the case of the applicant company, the judge in charge of the case had to act in the light of the strict limitations established by the case-law of the Supreme Court. As a result, his parting words turned out to be quite common. Although it can not be said that the jury's discretion was unrestricted, the Court does not believe that this farewell speech was such as to reliably guide the jury in assessing losses in the light of a reasonable ratio of proportionality to harm done to reputation and personal and family life. as follows from the conclusion of the Supreme Court that the compensation awarded to the jury was excessive and disproportionate, the first guarantee was ineffective.

(ii) The second guarantee is a review of the appellate procedure. The Supreme Court overturned the decision of the High Court for compensation of losses and, at least to this extent, the appellate guarantee was effective. However, later the Supreme Court confined itself to the fact that he himself carried out the award of compensation. The amount of this compensation was higher than any amount ever awarded by a jury or by an appellate court, and was much higher than the amounts previously decided or revoked by the Supreme Court. In the Court's opinion, the legitimate but exclusive exercise by the Supreme Court of its authority to replace its own assessment of damages with the assessment made by the jury, coupled with the exceptional nature of the final award in terms of domestic practice, pointed to the need for a comprehensive justification for clarifying the award amount. However, although the amount claimed was not completely unmotivated, the Supreme Court did not explain, in addition to reiterating the principles of Barrett, which served as the basis for the jury's jury, and comparison with the previous case of defamation, how he came to the conclusion that he would award € 1,250,000. In addition, despite the serious reservations expressed by the experienced judge who examined the case, regarding the limitations stemming from the Supreme Court's case-law regarding parting words with which he could apply to the jury, the judge did not address the issue of ineffectiveness in the present case of this key guarantee against disproportionate penalties.

The Court stressed in conclusion that the subject matter of the present case was not the choice by the authorities of the respondent State of the procedure for the judge who examined the case and the jury, but rather the nature and scope of the instructions to be given by the jury of the judge examining the case to guide them in assessing losses and protect against disproportionate penalties and, if the appellate court implements a new assessment, the relevant and sufficient reasons for the amount awarded in return.


In the case there was a violation of the requirements of Article 10 of the Convention (unanimously adopted).


In the application of Article 41 of the Convention. Claims for compensation for pecuniary and non-pecuniary damage are rejected, since the Court can not be worth assumptions about the outcome of the proceedings in the absence of a violation.


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