‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

donderdag 18 juli 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 29

Blogpost written by Marc de Werd -  Courtesy Press Service of the European Court of Human Rights in Strasbourg

JOURNALISTS' TROUBLES If I had more time I would have written a shorter blog post, someone once wrote. It's busy these days in Strasbourg just before the August holidays. And we've seen not less than five journalist's cases only this week that all need some attention.

Journalism is a dangerous profession. Attacks on journalists are not like many other assaults, where the motive is frequently materialistic or racism. These are political attacks. According to Nils Muižnieks, Council of Europe Commissioner for Human Rights:
"Violence or threats of violence against journalists are intended to shut them up and make them stop doing their job, which can involve exposing corruption, abuse of power or discrimination against various minorities. Media freedom is the lifeblood of a democracy, as it is an essential prerequisite for other freedoms as well, such as freedom of association or assembly. Those of us who witnessed the end of the Soviet Union remember well how glasnost’ or increased openness and media liberalisation opened the floodgates for the emergence of civil society and political pluralism."
Also in the eyes of the European Court of Human Rights the press performs a vital role of “public watchdog” in a democratic society. It held many times that "freedom of the press and other news media affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.

Therefore the media hold quite a strong position in the Court's case law. Much too strong, as some of the applicants in this week's roundup of cases claim. But they were unsuccessful. The Court has stated repeatedly that although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on political issues and on other matters of general interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation, and also information” or “ideas” that offend, shock or disturb. Moreover, an attack on a person’s reputation must attain a certain level of seriousness and cause prejudice to the victim’s personal enjoyment of the right to respect for private life. It is established case-law that the protection afforded to journalists who cover matters of public concern and the limits of acceptable criticism, are wider with regard to a civil servant or a politician acting in his public capacity than in relation to a private individual.


In Nagla v. Latvia the case concerns a well-known broadcast journalist in Latvia who complains about a police search of her home in May 2010 as part of an investigation into a leak from a database maintained by the State Revenue Service. Ms Naga's home was searched, and a laptop, an external hard drive, a memory card, and four flash drives were seized after a search warrant was drawn up by the investigator and authorised by a public prosecutor. The Court concluded that “relevant and sufficient” reasons for the interference complained of were not given and that there had been a violation of Article 10 of the Convention (freedom of expression):
"101. The Court considers that any search involving the seizure of data storage devices such as laptops, external hard drives, memory cards and flash drives belonging to a journalist raises a question of the journalist’s freedom of expression including source protection and that the access to the information contained therein must be protected by sufficient and adequate safeguards against abuse. In the present case, although the investigating judge’s involvement in an immediate post factum review was provided for in the law, the Court finds that the investigating judge failed to establish that the interests of the investigation in securing evidence were sufficient to override the public interest in the protection of the journalist’s freedom of expression, including source protection and protection against the handover of the research material. The scarce reasoning of the President of the court as to the perishable nature of evidence linked to cybercrimes in general, as the Ombudsman rightly concluded, cannot be considered sufficient in the present case, given the investigating authorities’ delay in carrying out the search and the lack of any indication of impending destruction of evidence. Nor was there any suggestion that the applicant was responsible for disseminating personal data or was implicated in the events other than in her capacity as a journalist; she remained “a witness” for the purposes of these criminal proceedings. If the case materials did include any indication in that regard, it was the investigating judge’s responsibility to carry out the necessary assessment of the conflicting interests, which was not done."
The data storage devices seized during the search of Ms Nagla’s home contained information capable not only of identifying the source of her information regarding the data leaks, but also her other journalistic sources of information. Therefore the Court did not accept the Government’s argument that the search did not relate to journalistic sources, finding that the search at Ms Nagla’s home and the information capable of being discovered there came within the sphere of protection under Article 10 of the Convention:
"The Court’s understanding of the concept of journalistic “source” is “any person who provides information to a journalist”; it understands “information identifying a source” to include, as far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” "

In Mater v. Turkey (French only) the case concerns the complaint of Nadire Mater she lodged regarding the virulent criticism expressed in a national newspaper following the publication in 1999 of a book she had written concerning the testimonies of former soldiers who had fought against the PKK. In August 2001, some months after Ms Mater and her editor had been acquitted of insulting the armed forces, a newspaper published a number of editorials directly questioning Ms Mater’s integrity. The articles claimed in particular that her book had been funded by an American foundation with links to the CIA, with the aim of championing the cause of the PKK and denigrating the Turkish army. The Court did not find a violation of Article 8 (right to respect for private and family life). It was satisfied with the protection the Turkish courts had afforded her:

"Enfin, examinant les critères mis en œuvre par les juridictions internes pour juger des articles litigieux, la Cour observe que les tribunaux nationaux ont souligné à la fois l’importance de la liberté de la presse et ses limites au regard des droits de la personnalité d’autrui. L’affaire a ainsi été examinée trois fois par la Cour de cassation avant que son assemblée plénière des chambres civiles conclût, après avoir soupesé les différents intérêts en jeu, que les écrits litigieux s’inscrivaient dans les limites de la critique admissible (-)."
In Belek and Özkurt v. Turkey (also French only) the applicants, Ahmet Sami Belek and İsmail Muzaffer Özkurt, are the owner and editor-in-chief respectively of a daily newspaper based in Istanbul. They were each ordered to pay a fine for having published, in May 2004, statements made by the chairman of a branch of the PKK and, in March 2004, statements made by prisoners explaining why they had embarked on a hunger strike. The Court held that their conviction infringed Article 10 of the Convention (freedom of expression), after having examined the publication: "Elle constate que, vus dans leur ensemble, les écrits litigieux ne contenaient aucun appel à l’usage de la violence, à la résistance armée ou au soulèvement, et qu’ils ne constituent pas un discours de haine, ce qui est à ses yeux l’élément essentiel à prendre en considération."

In Remuszko v. Poland the applicant, Stanisław Remuszko, is also a journalist. In 1999 he published a book – republished in 2003 – about the origins of Gazeta Wyborcza, one of the best known Polish daily newspapers, its journalists and the financial dealings of its publisher. He subsequently requested a number of daily and weekly newspapers to publish paid advertisements for the book. They all refused. He complained relying on Article 10 (freedom of expression), that the Polish courts endorsed Rzeczpospolita's (one of the newspapers) refusal to publish paid advertisements for his book. You may remember my recent blog post on this topic Free speech, politics and animal rights (comment on ECtHR Animal Defenders International v. the United Kingdom), if only because of the lovely picture of my dog Frits (no, he does not mind being dressed like a lawyer, as many of you asked me, he loves it actually). 

The Court in Remuszko found no violation, stressing that at no point the applicant was prevented from disseminating information about the book by any means he wished. Mr Remuszko's case was outweighed by another freedom-of-the-press interest:

"privately owned newspapers must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals or even by their own staff reporters and journalists. The State’s obligation to ensure the individual’s freedom of expression does not give private citizens or organisations an unfettered right of access to the media in order to put forward opinions (-). In the Court’s view these principles apply also to the publication of advertisements. An effective exercise of the freedom of the press presupposes the right of the newspapers to establish and apply their own policies in respect of the content of advertisements. It also necessitates that the press enjoys freedom to determine its commercial policy in this respect and to choose those with whom it deals.
80.  In the present case it has not been argued, let alone shown, that the applicant had any difficulties in publishing his book or that the authorities tried in any way to prevent or dissuade him from publishing it, or that, more generally, the media market in Poland was not pluralistic."
LEGAL CERTAINTY AND CONSISTENT JURISPRUDENCE - Just as an aside I would like to draw attention to Mr Remuszko's complaint about alleged inconsistencies in the Polish courts’ decisions (In caes concerning the press). The Court found no violation whatsoever but does provide us with a useful summary of established case law on the Convention's concept of legal certainty. The main principles are summarised as follows:
(i)  It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention;
(ii)  The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention;
(iii)  The criteria that guide the Court’s assessment of the conditions in which conflicting decisions of different domestic courts ruling at final instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and longstanding differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect;
(iv)  The Court’s assessment has also always been based on the principle of legal certainty which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law;
(v)  The principle of legal certainty guarantees, inter alia, a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law;
(vi)  However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement.
BACK TO JOURNALISM - The case of Węgrzynowski and Smolczewski v. Poland also is quite interesting. It is sort of a right-to-have-bad-publicity-forgotten-case. Two lawyers won in May 2002 a libel case against two journalists working for the newspaper Rzeczpospolita following the publication of an article making allegations that they had made a fortune by assisting politicians in shady business deals. They were paid compensation and an apology was published in the newspaper. They complained relying on Article 8 (right to respect for family life), about the courts’ dismissal of another action brought by them in 2004 with a view to having the article in question removed from the paper’s website archive. The case of Mr Wegrsynowksi was declared inadmissible for failure to comply with the six-month timelimit and also for failure to exhaust domestic remedies as he had failed to file a cassation appeal with the Supreme Court.. As regards the other applicant, the Court found that the Polish courts had struck a fair balance between the public’s right to access to information on the one hand and the applicant’s right to have his reputation protected on the other. The Court held in particular that completely removing the contested article from the newspaper’s archive would have been disproportionate (§ 65):
"The Court accepts that it is not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which have in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations. Furthermore, it is relevant for the assessment of the case that the legitimate interest of the public in access to the public Internet archives of the press is protected under Article 10 of the Convention."
It does however give applicants into consideration to request in future for a reference to the judgments in their favour to be added to the article on line (§67):
"the Court emphasises that in the proceedings in the present case the applicant did not submit a specific request for the information to be rectified by means of the addition of a reference to the earlier judgments in his favour. It was neither shown nor even argued before the Court that under the applicable legal framework they could not request the court to specify the steps that they wished to be taken in respect of the internet publication with a view to securing the effective protection of their reputation (-)."
 It is clear from this judgment that new technology confronts us with new problems in the field of Articles 8 and 10 of the Convention:  
"(-) the Internet is an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned (-). According to the case-law of the Court, Internet archives fall within the ambit of the protection afforded by Article 10 (-). The Court stressed the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. While the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported (-). The maintenance of Internet archives is a critical aspect of this role."
In this case and in the foregoing Remuszko-case, like in other recent judgments (Axel Springer and Von Hannover) the general interest with press freedom prevails over the interest of individuals, as Roseline Letteron observes in Diffamation et droit à l'information:
"La Cour européenne semble ainsi s'inspirer assez largement du droit américain, qui fait du Premier Amendement relatif à la liberté d'expression une garantie presque absolue. On ne peut que s'en réjouir, même s'il convient désormais de développer d'autres techniques juridiques de nature à protéger les droits des personnes dans ce domaine, en particulier le droit de réponse et le droit de joindre un jugement de condamnation à toute pièce conservée en archive."


In the case of Maktouf v. Bosnia and Herzegovina held that the court of Bosnia and Herzegovina should not have retroactively applied the 2003 Criminal Code to two war criminals. The case concerned complaints by two men convicted by the Court of Bosnia and Herzegovina of war crimes about the proceedings before that court. They complained in particular that a more stringent criminal law, namely the 2003 Criminal Code of Bosnia and Herzegovina, had been applied to them retroactively than that which had been applicable at the time they committed the offences – in 1992 and 1993 respectively –namely the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia.

Given the type of offences of which the applicants had been convicted (war crimes as opposed to crimes against humanity) and the degree of seriousness (neither of the applicants had been held criminally liable for any loss of life), the Court found that the applicants could have received lower sentences had the 1976 Code been applied. Since there was a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage in the special circumstances of this case, it held that they had not been afforded effective safeguards against the imposition of a heavier penalty. Therefore there had been a violation of Article 7 (no punishment without law) of the Convention. The Court recalled the general principles concerning Article 7:
“The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. (-)
74.  The Court sees no need to examine in any detail the Government’s further argument that a duty under international humanitarian law to punish war crimes adequately required that the rule of non-retroactivity be set aside in this case. It suffices to note that the rule of non-retroactivity of crimes and punishments also appears in the Geneva Conventions and their Additional Protocols (see paragraph 43 above). Moreover, as the applicants’ sentences were within the compass of both the 1976 and 2003 Criminal Codes, the Government’s argument that the applicants could not have been adequately punished under the former Code is clearly unfounded."

Not sure if much was expected in the UK of the cases of McCaughey and Others v. the United Kingdom and Collette and Michael Hemsworth v. the United Kingdom. Both cases concern the death of the applicants’ relatives at the hands of security forces in Northern Ireland. The Court declared most of the applicants’ complaints inadmissible as 'premature' and/or on the ground of a failure to exhaust domestic remedies because the investigations (after 23 years!) were still pending and domestic law required, since 2011, that those investigations be conducted in accordance with Article 2 of the Convention. In a concurring opinion, Paul Mahoney, the British judge at the court, acknowledged that describing a legal claim issued more than two decades after the killings as "premature" might seem unusual: 
"However, the position is so precisely because the innumerable and excessive delays in the inquest proceedings prevented the investigative process from beginning promptly and from being carried out with reasonable expedition. For this reason, even before the completion of the applicants’ civil action and their latest judicial review proceedings, the Court could not but find a procedural violation of Article 2 on the basis that the United Kingdom had, in relation to this requirement of promptness and reasonable expedition, failed in its obligation to the applicants to ensure, through the legal system in Northern Ireland, the effectiveness of the investigative process concerning the deaths of their two relatives at the hands of the security forces."
In the case of Abdullah Yaşa and Others v. Turkey (only in French) the Court held that the use of force against the applicant had not been an appropriate response to the situation or that it had been proportionate to the aim sought to be achieved, namely the dispersal of a non-peaceful gathering. The seriousness of the applicant’s injuries was not consistent with the strict use by the police of a degree of force made necessary by his conduct. Abdullah Yaşa, in March 2006, at the age of 13, was injured by a tear-gas grenade fired by the police while he was at the scene of an unlawful demonstration in support of the PKK. Also in the case of Abik v. Turkey (unlawful demonstrations in August 2006 in Adana, PKK supporters) found a violation of Article 2 of the Convention.

In Vronchenko v. Estonia the applicant, Alexey Vronchenko, is a Russian national who was convicted of the sexual abuse of a minor, his stepdaughter, and sentenced to eight years and three months’ imprisonment in a judgment which became final in September 2009. He is currently serving his prison sentence. Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and examination of witnesses), he complains that he did not have a fair trial since he did not have an opportunity to question the witness (the alleged victim) on whose testimony during the pre-trial proceedings his conviction was mainly based. Recalling its Grand Chamber’s judgment in AlKhawaja and Tahery (see also last week's blog post), the Court found that there were no such counterbalancing factors present which permitted a fair and proper assessment of the reliability of the evidence and that the applicant did not receive a fair trial.  In a joint dissenting opinion judges LazarovaTrajkovska and Sicilianos believe, looking at the background to the careful scrutiny of the evidence by the Court of Appeal, and viewing the fairness of the proceedings as a whole, that the counterbalancing measures taken were sufficient and that the applicant was afforded the protection of his rights safeguarded:
"Even though the applicant lacked the possibility to question E., the Harju County Court watched the video interview and thus had a clear impression of the reliability of the child’s evidence. Moreover, the video was made available to the defence, which had the possibility to bring up any issues regarding the credibility of E’s statement. The County Court also heard several witnesses concerning the events in question, including A.K. (a psychologist who worked at the school attended by E.), G.I. (a teacher) and T.S. (a psychologist at a children’s refuge), M.M. from the child protection service and K.G., who had carried out an internal examination of E. It is also significant that according to M.M. the child’s behaviour was consistent with that of a victim of a sexual offence."

In the case of Schädler-Eberle v. Liechtenstein the applicant, Karolina Schädler-Eberle, is a Liechtenstein national who was born in 1925 and lives in Triesenberg (Liechtenstein). She is the owner of two plots of land, which, according to a land development plan newly adopted by referendum in the municipality in February 2000, fell within a zone in which the construction of buildings was not authorised. Ms Schädler-Eberle’s objection against the development plan was rejected by the municipality and by the national Government, and her complaint against those decisions was rejected by the courts in a decision upheld by a final judgment in April 2009. The Court found no violation of Article 6 § 1 (right to a fair hearing), although the applicant complained that the administrative court, which decided her case in the first instance, did not hold a public oral hearing, in which evidence could have been taken in an adversarial manner. The Court accepted that the Administrative Court could fairly and reasonably decide the applicant’s case concerning the designation of her property as non-building land on the basis of the parties’ written observations and other written materials. 
"the situation of the plots of land concerned was commonly known and clearly shown on the photographs in the file. In the domestic court’s view, it was therefore not necessary to take additional evidence offered by the applicant in order to clarify the facts of the case. In the Administrative Court’s assessment of the case before it, which cannot be considered as unreasonable, there were not, therefore, any contested facts relevant to the outcome of the case or any issues of credibility which necessitated further clarification in a hearing. (-) Further, the Administrative Court obtained documents and photographs concerning the land development plan, as requested by applicant, and gave the applicant an opportunity to reply to the Municipality of Triesenberg’s observations in writing and to comment on the evidence obtained by the court. The applicant therefore had knowledge of and could comment on all evidence adduced or observations filed with a view to influencing the court’s decision, as required in adversarial proceedings. Finally, there is nothing to indicate that by the Administrative Court’s written conduct of the proceedings, the applicant was not afforded an opportunity, as required by the principle of “equality of arms”, to present her case, including her evidence, under conditions that did not place her at a substantial disadvantage vis-à-vis the opposing Municipality of Triesenberg.
In Stoilkovska v. “The former Yugoslav Republic of Macedonia” the applicant, Rosica Stoilkovska, is a Macedonian national who was born in 1948 and lives in Kriva Palanka (“The former Yugoslav Republic of Macedonia”). She worked as a salesperson in a food store, in which goods went missing in 1994. The case concerns civil proceedings brought against her by her employer, in which she was ordered, by a judgment of November 2006, to pay compensation for the missing goods. Relying on Article 6 (right to a fair trial), she complains in particular that her case was decided differently from those involving her colleagues, although the cases concerned identical issues. The Court found that the applicant was faced with not less than "a flagrant inconsistency" in the application of domestic law that can only undermine the credibility of the courts and weaken public confidence in the judicial system. (See also the Remuszco case I mentioned above.)

Brežec v. Croatia concerns Ms Brežec’s complaint about an eviction order made against her. In 2005, Mlini Hotels, the private company that owned the flat she had occupied since 1970, brought a civil action seeking her eviction, arguing that she had no legal basis for her occupation. This claim was accepted by the Dubrovnik Municipal Court and Ms Brežec’s appeal was ultimately rejected in June 2009. When Ms Brežec moved into the flat in 1970 it was publicly owned, and she contends was part of the system of specially protected tenancies for socially owned flats that existed in the former Yugoslavia. She was an employee of Mlini Hotels, which was at that time a publicly owned company. However in 1997 the Croatian government sold the building to Mlini Hotels, which had by then been privatised. Ms Brežec argues that her tenancy should be recognised as protected, and that the treatment of her case by the national courts constituted a disproportionate infringement of her Article 8 (right to respect for private and family life and the home) rights. The Court found indeed a violation of Article 8 of the Convention in the instant case because the interference with her right protected by Article 8 of the Convention was ‘not ”necessary in a democratic society”.
In Klauz v. Croatia the applicant, Ivan Klauz, is a Croatian national who was beaten in police custody during a questioning session that lasted four hours. The police officer involved subsequently received a suspended sentence for ill-treatment in the exercise of an official duty. Having brought a civil action against the State, Mr Klauz was awarded compensation for the illtreatment, which was paid to him in December 2007. Relying inter alia on Article 6 § 1 (right to a fair trial) and Article 1 of Protocol No. 1 (protection of property), he complained sucessfully that he was ordered to pay the legal costs of the civil proceedings which were almost as high as the compensation he was awarded on the basis of his claim. The Court held:
"the award of costs in the present case had some unacceptable consequences. First, it was paradoxical that the State took away with one hand – in fees for its legal representation by the State Attorney’s Office – a substantial portion of what it had awarded with the other. Second, the procedural sanction for the applicant’s minor procedural misconduct, namely bringing an inflated claim, was so severe that it unduly reduced the compensation he was awarded for such a serious wrongful act as the criminal offence of illtreatment in the exercise of an official duty – an act prohibited by Article 3, which ranks among the most fundamental provisions of the Convention. (-) Accordingly, it cannot be said that the domestic courts’ decisions in the present case were proportionate to the legitimate aim pursed by the rule enunciated in section 154(2) of the Civil Procedure Act, which requires one party to pay the opposing party’s costs depending on their success in the proceedings, which costs are determined in proportion to the value of the claim. Its application in the present case resulted in a restriction which impaired the very essence of the applicant’s right of access to court.

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