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I. INTRODUCTION
The European Convention for the Protection of Human Rights and Fundamental
Freedoms is composed of the primordial legal entitlements to protect human dignity and
integrity, to foster the harmony of human kind and to nurture a society respectful of
human rights. In the implementation of the Convention, one of the major priorities to
balance the interests of all human beings bound by its provisions. In the same light,
Member States are expected to maintain the integrity and independence of political
institutions to ensure effective implementation of the thrusts and norms enshrined in the
Convention.
Apart from the list of human rights to be enforced and protected, the Convention
describes the scope and bounds of these rights. Although these rights are extremely
essential, they are not absolute. They may be reasonably curtailed by limitations and
restrictions. These limitations and restrictions guide member states how to achieve the
balancing of interests of all and how to weigh one right against another. The rights of
private individuals must tip the scales with State power and ability to govern. One such
balancing act is the intersection of parliamentary immunity with the freedom of
1 Ms. Africa is a licensed law practitioner in the Philippines, who finished her Bachelor of Laws in San
Beda College in Manila. She obtained her LL.M in International Law of Human Rights and Criminal
Justice in Utrecht University in The Netherlands. She was a former legislative officer in the Senate of the
Philippines, providing research and bill drafting support for human rights issues. She participated in
internship programs in the International Criminal Court in The Hague, The Netherlands, and the
International Service for Human Rights doing UN related work during the General Assembly in the UN
Headquarters in New York, U.S.A. At present, she is engaged in election related activities in her native
Philippines.
expression.
Parliament is the primary government institution that relies on the freedom of expression
and public debate for its continued and meaningful existence in the workings of a
democratic society. If the freedom of expression is defeated within the halls of Parliament
and its members deprived of their right to speak freely, the Parliament will crumble as co-
equal in the triad of powers in government. This being so, most legal jurisdictions
sanction the existence of parliamentary immunity. This is unanimously recognized within
the Council of Europe and the European Union. However, this privilege may be subject
to abuse and disregard of rights of others. In the meanwhile, parliamentarians as elected
representatives are entitled to a wider scope of freedom of expression in the exercise of
their parliamentary functions. In view of the foregoing, does the essence of parliamentary
immunity negate the application of the three-pronged test? With a review of pertinent
case law on the freedom of expression of parliamentarians, how did the European Court
of Human Rights decide in such cases?
Article 10, aside from protecting the freedom of expression, also safeguards the free flow
of opinions, information and ideas, from the originator to the recipient without
unnecessary or unlawful interference by any public authority. Freedom of expression of
opinion does not rely heavily on the content or essence of the opinion, but rather on the
specific means that the particular opinion is articulated. Any restriction of the means by
which it was conveyed would constitute a restriction of the freedom enshrined in Article
10(1). In the meantime, the terms “information” and “ideas” as they are found in the
provisions of Article 10(1) has been given a broad interpretation by the Strasbourg Court.
The Court pronounced that it was not necessary to draw a line between the two and to
describe how different they are from each other.4 What is essential though is that the
freedom to impart information and ideas is considered “an expression of opinion by an
The large role that public interest plays in the protection of freedom of expression
highlights the importance of public debate and political expression. It is therefore well-
established that freedom of political debate is treated as one of the foundations of a
strongly established democratic society.6 This principle has been emphasized in a series
of ECHR cases. The Court enunciated in these cases that the normal bounds of acceptable
criticism shall not be similarly applied, in fact, wider, with respect to politicians than they
are with private individuals. The nature of the status and position held by the politician
permits a higher threshold for tolerance in meticulous scrutiny by the public of every
spoken word, writing published, as well as his deeds.7 The Court further reasons that due
to the fact that politicians enter the public arena voluntarily, it is therefore in that same
light that they must exhibit a higher level of tolerance in the midst of criticism.8
Freedom of expression, while being regarded as a most essential right in human rights
law, is not absolute. In certain instances, allowable interferences by public authorities
may be had. These circumstances are subject to narrow interpretation, with necessity and
legal bases sufficiently proved.9 These interferences, however, are subject to several
restrictions, as they are described in the second paragraph of Article 10. Commentators
note that the wording or construction of the second paragraph of the aforementioned
article is substantially different from related paragraphs found in Article 8, 9 and 11 of
the Convention.10 Article 10 mentions that the freedom of expression may be subjected to
the application of formalities, conditions and penalties, treated to be as restrictions
thereof. The list of legitimate aims provided for in the same paragraph is much longer,
finding therein, “territorial integrity”, “preventing the disclosure of information received
5 Van Dijk, P. et al. (eds) “Theory and Practice of the European Convention of Human Rights”, Intersentia,
Antwerpen-Oxford, p. 778.
6 Lingens v. Austria, Application No. 9815/82, Judgment of 8 July 1986.
7 Lingens, Ibid., paragraph 42.
8 Jerusalem v Austria, Application No. 26958/95, Judgment of 27 February 2001.
9 Handyside v. United Kingdom, Application 5493/72, Judgment of 7 December 1976.
10 Van Dijk, P. et al.,(eds), supra, p. 793.
in confidence” and “maintaining the authority and impartiality of the judiciary”.
However, it is with due note that the freedom to hold opinions is regarded as similar to
the internal freedom of thought and conscience (forum internum) found in Article 9, in
the sense that it may not be subject to any restriction.11
The criteria or standard used to assess the validity of these interferences are similar across
Article 8, 9, 10 and 11.12 It is required that the interference is prescribed by law; to
accomplish a legitimate aim and must be necessary in a democratic society.
Prescribed by Law
The first requirement is that the interference must be found and described in domestic
law. The Strasbourg Court ruled that “law” as it is understood, embraces both written and
unwritten law.13 Written law, which is taken to indicate not only those enacted by
national legislatures or parliament but also enactments of lower rank than statutes, must
be considered in the light of interpretative case law by their respective domestic
judiciaries. This holistic concept of “law” does not differ between civil and common law
systems. The Court pronounced that it would be irrational to emphasize the peculiarities
of both types of systems. In this regard, case law shall be covered by the definition of
"law" as it is the enactment in force as the competent courts have interpreted it in the
light, if necessary, of any new practical developments.
According to ECHR jurisprudence, the law must be adequately accessible. In this sense,
the law must be accessible to concerned citizens and it must be duly published.14 The
Court further noted that the law must provide the circumstances wherein the legal rules
will apply and that they must be sufficiently described in the said law. Likewise, it must
The legitimate aims referred to in the second requirement are those that are mentioned in
paragraph 2 of Articles 10. As earlier pointed out, an exhaustive list of legitimate aims is
found therein. This includes national security, territorial integrity, public safety,
prevention of disorder or crime, protection of health and morals, prevention of disorder or
crime, protection of the reputation or rights of others, prevention of the disclosure of
information received in confidence and maintenance of the authority and impartiality of
the judiciary. This is seldom a contentious issue in cases involving interferences with
fundamental freedoms by public authorities. The Court takes due notice of this fact as
they are inferred by respondent States.
The third requirement does not imply that the interference must be indispensable, as the
term necessary must be understood in its ordinary sense. It must, however, be taken to
address a “pressing social need”. In assessing this particular requirement, the Court is
tasked to review the interference utilizing a holistic view to arrive at a conclusion
whether the acts of public officers or officials are actually “proportionate to the legitimate
aim pursued.”15 Though the Court has not drawn a specific definition as to what a
democratic society is,16 the following factors are bound to affect the Court’s assessment if
the interference is necessary in a democratic society: the type of expression, the value of
the expression, the medium in which the expression was communicated, the audience, the
target for the expression, the accessibility for the audience, the objective of the
interference, the duties and responsibilities of the speaker, and the impact the interference
15 Hertel v. Switzerland, Application No. 25181/94, 25 August 1998.
16 Svahn, A. supra, p.36.
had on the applicant.17
The origins of parliamentary immunity date back to the fourteenth (14 th) century in
Anglo-Saxon law, when the House of Commons reviewed the right of Members of
17 Clayton, R., et al, “The Law of Human Rights”. Oxford: Oxford University Press 2000 p. 1077.
18 Boulton, C.J., (ed), “Erskin May’s Treatise on the Law, Privilege, Proceedings and Uses of Parliament
21st Edition”, London Butterworths, 1989. p. 69.
19 The Venice Commission of the Council of Europe, “Report on Regime of Parliamentary Immunity”,
Strasbourg, 04 June 1996, http://www.venice.coe.int/docs/1996/CDL-INF(1996)007-e.asp, last viewed on
01 May 2008.
20 Wigley, S., “Democracy and Politics of Parliamentary Immunity in Turkey, retrieved from
http://www.bilkent.edu.tr/~wigley/WigleyKocanparliamentaryimmunityturkey.pdf, last viewed on 04 May
2008.
21 The Venice Commission of the Council of Europe, Ibid.
22 See A. v. United Kingdom Judgment, Application No. 35373/97, Judgment of 17 December 2002, Al-
Adsani v. United Kingdom, Application No. 35763/97, Judgment of 21 November 2001 and Waite,
Kennedy and Others v. Germany, Application No. 26083/94, Judgment of 18 February 1999.
parliament to debate without undue interference from the King. Statutory recognition of
the freedom of speech of parliamentarians came into being in the Bill of Rights of 1689. 23
Article 9 therein states that, “the freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any court or place out of
Parliament.” On the other hand, the non-liability of elected representatives regarding
opinions expressed in the course of their official functions was introduced by a
proclamation in 1790.24
Most legal jurisdictions recognize the dual nature of parliamentary immunity: non-
liability and inviolability. Non-liability pertains to immunity which protects Members of
Parliament from being subjected to judicial proceedings or interference from the
executive over opinions expressed and votes cast in the performance of their official
duties in Parliament. On the other hand, inviolability is that which pertains to the
prohibition from arrest or detention or prosecution by individual members of Parliament
without the consent of the Chamber in which he belongs.25 These two types of immunities
are considered as complementary to each other. As such, they must be analyzed from
successive angles as to their scope, acts to which they relate and implications in cases of
abuse.
Non- liability
The scope of non-liability or the legislative agency model,26 encompasses all sorts of
penalties, criminal or administrative (except those sanctioned by Parliament itself),
directed to acts committed by Members of Parliament in the conduct of their duties, more
especially those pertaining to their freedom of speech. This results in the exemption of
the Members of Parliament from any criminal or civil liability arising from such acts.
This non-liability has a perpetual character. The protection afforded to votes cast or
23 Boulton, C.J., supra, p. 73.
24 Macgee, S., (ed), European Centre for Parliamentary Research and Documentation, “Rules on
Parliamentary Immunity in the European Parliament and the Member States of the European Union” 2002,
p. 11.
25 MacGee, S., supra, p.10.
26 Wigley, S., “Parliamentary Immunity: Protecting Democracy or Protecting Corruption?” in the Journal
of Political Philosophy, Vol. 11, No.1, 2003, p. 24
opinions stated is not extinguished even beyond the mandate or term by which the
parliamentarian was elected. Among the acts covered by this immunity are: ballots cast
during Committee and Sub-Committee deliberations, as well as those conducted in the
House Chamber, opinions they express, whether oral or written. In some jurisdictions, the
United Kingdom, for example, the immunity extends to any person who shall participate
in proceedings in Parliament, as witnesses, or otherwise or in regional assemblies. This
does not mean, however, that the parliamentarians are not subjected to any kind of
penalty. In cases where opinions expressed in a parliamentary debate are of an insulting
or defamatory nature, the Member concerned is subject to the disciplinary control of the
Chamber to which he belongs. He may be censured for such conduct that is unreasonable
“having regard to his office and status”. The Venice Commission singled these cases out
as the qualification of the principle of non-liability.27
Inviolability
Inviolability or the Authorization Model,28 more popularly known as the freedom from
arrest, requires the authorization of Parliament before any of its members is arrested or
prosecuted for acts that are considered outside the scope of his or her duties. Acts
covered in this type of immunity are those which are criminal in nature. In some cases,
this immunity may not be availed of in case of commission of more serious offenses. In
contrast with non-liability, inviolability is effective only until the mandate expires. In
such cases, arrest or prosecution of the Member concerned is postponed upon the end of
the term.
As the Court adjudged that the statements made were in fact, value judgments, it laments
that the Austrian Court adopted an inconsistent approach by requiring evidence as to
veracity of the said statements, but on the other hand, depriving the applicant of such an
opportunity to present supporting evidence in this regard. By doing so, the State went
beyond its margin of appreciation, amounting to an unlawful interference of freedom of
expression.
The case of Piermont v. France arose when a Member of the European Parliament
delivered a speech in a public meeting in French Polynesia.33 As an environmentalist and
pacifist, she condemned the continuation of nuclear testing and the French presence in the
Pacific. As a result, an order was issued denying the applicant from reentering the
territory of New Caledonia and was expelled from French Polynesia.
The applicant, according to the Court, could not be faulted for participating in a political
debate. As much as the impugned acts were part and parcel of her responsibilities as a
Member of the European Parliament,34 she conducted the same in a peaceful manner.
All in all, the Court interpreted the speech as an integral part of a democratic debate. As
there was political instability in the territory that would otherwise endanger the peace and
order situation as a result of the speech, the Court found the interference unlawful and
disproportionate to the legitimate aims pursued in a democratic society.
In Alinak and Others v. Turkey,36 the applicants were Members of Parliament from a
political party considered a threat to the territorial integrity of the State and its national
unity. Due to the purported character of the party, the National Assembly lifted the
parliamentary immunity of the applicants, among other co-members. The Constitutional
Court subsequently ordered the dissolution of the party. Thereafter, the applicants were
sentenced to imprisonment for delivering speeches under the PKK banner.
35 Article 16: “Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens.”
36 Application No. 34520/97, Judgment of 04 May 2006 (French), Summary Retrieved from
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0ad4f5ba6f6a119bc125668f004c455e/3f3b167d1a06e6fbc12571
610041deea?OpenDocument, last viewed 03 May 2008.
37 Application No. 35839/97, Judgment of 22 February 2005 (French), Summary Retrieved from
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0ad4f5ba6f6a119bc125668f004c455e/030cc5452a7e6069c1256
faf0038882c?OpenDocument, last viewed on 03 May 2008.
of an opposition party delivered a speech at a press conference outside the halls of the
national assembly, labeling the incumbent President of the Republic as a “liar” and a
“slanderer. The President of the Republic then brought forth a case before the domestic
court for defamation to his person and his capacity as President of the Republic. The
Court sentenced the applicant guilty and ordered him to pay an amount which was the
highest fine for defamation ever ordered by the Court.
The Court found favor in the argument that the offensive remarks uttered by the applicant
were tantamount to purely personal attacks. They could hardly be considered as included
within the ambit of political debate, despite the longstanding political antagonism
between the two parties. However, the manner by which the domestic court assessed the
damages awarded to the President of the Republic was, in the opinion of the Strasbourg
Court, excessive. The Court observed that the award of damages was, in essence, a civil
fine. It was disproportionate to the gravity of the remarks uttered. Henceforth, it was not
necessary in a democratic society, giving rise to a violation of Article 10 of the ECHR.
In a case against Portugal,38 the applicant, Roseiro Bento, then the mayor of the town of
Vagos, engaged in a debate with one of the town councilors during a council meeting. A
heated exchange ensued, which resulted in a filing of a case against the applicant for
insulting behavior. The case was dismissed, so the town councilor proceeded against
Bento for damages. Upon receiving an adverse judgment thereto, the applicant brought
his case before the European Court interposing an unlawful interference with his freedom
of expression.
The Court highlighted the fact that the words uttered in a political debate may become
harshly critical or, to some point, defaming or excessively personal. However, it
rationalized that these have become inevitable to preserve the rightful balance in a
democratic society. The heated exchange happened during a town meeting, which while
participants thereof may not be vested with parliamentary immunity, this venue was
38 Roseiro Bento v. Portugal, Application No. 29288/02, Judgment of 18 April 2006, Summary Retrieved
from
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0ad4f5ba6f6a119bc125668f004c455e/34ffd85b83b06365c1257
154002ed6fc?OpenDocument, last viewed on 03 May 2008.
likened to the Parliament in the sense that the freedom of expression must be respected in
such cases. The Court underscored the rationale that “the Parliament and similar bodies
were vital forums for public debate.” Just like in the case of Pakdemirli, the Court found
that the adverse judgment of damages imposed on the applicant was in fact a civil fine. It
held that this judgment was not proportionate to the legitimate aim pursued. Absent any
reason convincing enough to allow interference with the freedom of expression, the Court
found a violation of Article 10 of the Convention.
SPAIN
Deputies in Parliament in Spain are accountable only to the Chamber of which he or she is a
member. In cases of opinions expressed outside the parliamentary privilege, the deputy is
subject to the disciplinary supervision of the Speaker. The immunity grants unto the
deputies exemption from all criminal and civil prosecution for opinions expressed and votes
cast directly related to the performance of parliamentary duties, made in the Parliament. 39
The privilege is perpetual in duration, not dependent on the membership of the deputy.
However, it excludes all acts of violence against person or property, even if committed
inside parliament. Statements made in the context of meetings of parties or with
constituents, private encounters or journalistic activities are also not covered by the
immunity.40
AUSTRIA
39 In MacGee, S., supra, a list of criteria to determine the scope of non-liability was mentioned,
“… Acts protected by parliamentary immunity include the following: all statements in a plenary session or
committee, questions, appeals, requests, speeches, motions, judgments, amendments, private votes, agendas,
introduction of bills. Also included are actions which, although performed outside the place of the meeting are
performed in the exercise of the duties themselves, such as committees of inquiry or investigation. Official
publications and reports on deliberations made officially to the press are also protected…”
40 The Venice Commission, supra, paragraph 42.
Austria observes the same rules, in the case of France. In contrast thereto, however, the
duration of the immunity depends on the length of the mandate41 Aside from members of
Parliament, the same immunity is available to members of Regional Assemblies, as in
Jerusalem v. Austria, when the town council of Vienna acts as a Land Parliament.
FRANCE
A Member of the European Parliament is exempt from all forms of inquiry, detention or
legal proceedings in respect of opinions expressed or votes cast by them in the performance
of their duties. Further, they are entitled, in the territory of their own State, to the immunities
accorded to Members of their Parliament. Moreover, in the territory of any other Member
State, they are immune from any measure of detention and from legal proceedings. The
duration of the privilege described is indefinite.
TURKEY
PORTUGAL
In Portugal, the scope of non-liability as to votes cast and opinions expressed while in the
performance of parliamentary duties is limited only to those made on the floor of the House.
However, there is also an extension of immunity for remarks uttered which are defamatory
in nature. The duration of this privilege is independent of the mandate of the Member of
Parliament. The protection is absolute in this sense.
VI. ANALYSIS
In the case of Castells v. Spain, the act complained of, i.e. the publication of strongly critical
remarks of a Senator in a weekly periodical, was one found outside the scope of
parliamentary immunity of non-liability. According to the report of the Venice Commission,
it is explicitly described as one of the acts excluded from parliamentary privilege in the
jurisdiction of Spain. Nonetheless, the applicant was accorded due consideration. His vital
role as a parliamentarian gave him a wide leverage in terms of his freedom of speech.
Freedom of political expression will be in peril if remarks that shock, disturb or offend shall
be disallowed especially in the context of public debate. The three pronged test was made
the basis of such a conclusion. The Court reasoned out that regardless of whether his acts
were outside the ambit of the parliamentary privilege, it was necessary in a democratic
society to consider his remarks as admissible.
Members of the European Parliament, as mentioned above, are entitled to the same
privileges of Members of Parliament in each signatory State, save for certain conditions. In
the case of Piermont v. France, however, the freedom of expression of the applicant was in
question for uttering allegedly “seditious” remarks during a public gathering in French
Polynesia. Since Members of the European Parliament are entitled only to immunity from
legal arrest and detention in the territory of other Member States, the applicant could not be
shielded by parliamentary immunity of non-liability in the case at bar.45 However, the more
lenient approach in interpreting the freedom of expression of parliamentarians applies to her
case.
The rules on parliamentary immunity on free speech in Turkey are comparatively wider than
other Member States. However, this was not applied as such in the case of Alinak and
Others. The speeches that the applicants delivered, regardless of their defamatory character
In the Pakdemirli case, the same situation will be observed. The Court noted that the
remarks of the applicant were bordering on a personal attack, rather than an utterance that
could well be covered by parliamentary immunity. However, it is inevitable that
situations such as these may arise in the course of a highly intense political debate,
especially when the parties engaged have had a longstanding political antagonism. By
looking at the rules of parliamentary immunity in Turkey, this case would have been
bound by the parliamentary privilege. It may be observed that the parliamentary
immunity was actually not lifted. This prerequisite is essential before bringing forth a
legal proceeding against Pakdemirli. Surprisingly, the Strasbourg Court overlooked this
fact. Instead, it made a point of departure by zeroing in on the exorbitant award of
damages that would send a chilling effect on parliamentarians to air the grievances and
opinions of the electorate that they represent.47
VII. CONCLUSION
It can be seen from the discussion made above that parliamentary immunity on non-liability
is a principle well respected among States within the Council of Europe. There is not much
contested debate that parliamentary immunity is a special case of freedom of expression, in
that in its absolute character, it is not subject to any restriction or limitation. In fact, the
Venice Commission articulated that the immunity, as such, is not prone to question in most
countries it had surveyed. It may be gleaned by the seeming uniformity of rules observed
46 Wigley, S., Democracy and Politics of Parliamentary Immunity in Turkey, supra, page 134.
47 Wigley, S., Ibid.
across the entire region. The respect for the system put in place to advance the freedom of
expression of parliamentarians may account for the very few cases in the European Court
discussing the intersection of parliamentary immunity on freedom of expression. More cases
in the European Court involving parliamentary immunity, in fact, deal with the application
of the right to access to court under Article 6 by persons defamed or adversely affected by
opinions or remarks made by parliamentarians. Nonetheless, the Court recognizes that
parliamentary immunity must remain inviolable in the face of obstruction of individual
rights for the protection of Parliament as an institution.
This study reveals that there is absolute non-interference on the part of the regional human
rights court in cases of parliamentary immunity over votes cast in each Chamber. No case
touching on this issue was found. Instead, cases dealt with the issue of the qualification of
parliamentary non-liability with regard to opinions expressed in the performance of their
duties. Further, it was found in the analysis of pertinent case law that the recognition of
parliamentary immunity or the wider scope or discretion afforded to expressions of
parliamentarians does not preclude the application of the three pronged test. The criteria that
an interference prescribed by an accessible and foreseeable law, pursuant to a legitimate aim
and necessary in a democratic society remain to be essential, notwithstanding the position or
status of the parliamentarian as an elected representative.
In the decisions rendered by the European Court, there is a strong pattern of upholding the
freedom of expression of the parliamentarian, in view of his or her status as an elected
representative and his or her role to bring forth the opinions and interests of the citizenry that
he or she may represent. This principle is recognized in all the cases discussed in Part IV
and applied indiscriminately, regardless of the application of parliamentary immunity. The
situations surrounding the cases against Turkey hereby exhibits that parliamentary
immunity, if disregarded, will put the integrity of the Parliament at risk, amidst the power of
control of the judiciary or executive in times of political turbulence or societal unrest. The
Court recognizes this stark reality and continues to defend the integrity of the Parliament
even outside the realm of parliamentary immunity, by relying on the principle of elected
representation of the people.
In fine, parliamentary immunity may be treated as a special area in the application of
freedom of expression. While the rights and interests of private citizens are, most often than
not, the primary concern in the protection of this cornerstone of a democratic society,
parliamentary immunity safeguards the institutions that cradle freedom of expression as the
core of its existence. The deference of domestic courts to parliamentary immunity is strictly
observed by the European Court, well knowing of its essential role in a human rights
friendly society.
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European Court of Human Rights. Waite, Kennedy and Others v. Germany. Application
No. 26083/94. Judgment of 18 February 1999.
Macgee, S., (ed). “Rules on Parliamentary Immunity in the European Parliament and the
Member States of the European Union”. European Centre for Parliamentary Research and
Documentation. 2002.
European Court of Human Rights. Alinak and Others v. Turkey. Application No.
34520/97. Judgment of 04 May 2006 (French). Summary Retrieved from
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d1a06e6fbc12571610041deea?OpenDocument. Last viewed 03 May 2008.
European Court of Human Rights. Roseiro Bento v. Portugal. Application No. 29288/02.
Judgment of 18 April 2006. Summary Retrieved from
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b83b06365c1257154002ed6fc?OpenDocument. Last viewed on 03 May 2008.