CASE OF INTERNATIONAL BANK FOR COMMERCE AND DEVELOPMENT AD AND OTHERS v. BULGARIA

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Adversarial trial);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The bank was founded and entered in the register of companies in DATE . According to the ORG ’s records , its shareholders on DATE were the second applicant , PERSON , who held PERCENT of the shares ; his brother , PERSON , who also held PERCENT of the shares ; the CARDINAL companies listed in paragraph CARDINAL above , each of which held PERCENT and PERCENT of the shares ; a Mr B.P. , who held PERCENT of the shares ; and PERSON , who held PERCENT of the shares ( for a full breakdown , see the Appendix ) .

At the material time the bank had a CARDINAL - tier management system , consisting of an executive board and a supervisory board . Mr PERSON and PERSON PERSON were members of the executive board between CARDINAL DATE and DATE . In DATE and DATE Mr B.P. ( see paragraph CARDINAL above ) was member of the bank ’s executive board and CARDINAL of its executive directors .

NORP In DATE tensions arose among the bank ’s shareholders and between some of the shareholders and the bank ’s management . On DATE Mr Bonev and Flavors , Fragrances and Chemicals ( ORG , acting in their capacity as shareholders who had held CARDINAL per cent of the bank ’s shares for DATE , asked the executive board to call a general meeting of shareholders with a view to adopting amendments to the bank ’s articles of association , reducing the number of members of the bank ’s executive and supervisory boards , and replacing some of the boards’ members . The same day the executive board agreed to call such a meeting , but on DATE the supervisory board set its resolution aside and called a general meeting of shareholders with a different order of business , to be held on DATE .

Thereupon PERSON , ORG , Flavors , ORG ( ORG , ORG , ORG , ORG Int’l ORG , ORG in Travel - Inc , ORG and ORG , acting in their capacity as shareholders who had held MONEY of the bank ’s shares for DATE , applied to ORG for an order adding the points that they wished to have included on the general meeting ’s order of business . On DATE the chairman of the bank ’s executive board and CARDINAL of its executive directors objected to the request , saying that according to the bank ’s register of shareholders , the persons who had made the request did not hold enough shares to be entitled to make CARDINAL , and that the companies which had made the request had not produced proper credentials . On DATE the ORG made an order in the terms sought by PERSON and the companies , noting that they had proved that they had held the required number of shares for DATE through notarised declarations .

Separately , PERSON and Flavors , Fragrances and Chemicals ( ORG , again acting in their capacity as shareholders who had held CARDINAL per cent of the bank ’s shares for DATE , asked ORG to authorise them to call a separate general meeting of shareholders , with the order of business that they wished to have . To establish their capacity as shareholders , they enclosed with their request provisional share warrants issued in DATE . On DATE the ORG upheld the request . On CARDINAL and CARDINAL DATE the chairman of the bank ’s executive board and CARDINAL of its executive directors , PERSON , asked the court to vary its order , arguing that the provisional share warrants had not been registered in the bank ’s register of shareholders , and that the documents enclosed with the ORG request had not been issued by persons authorised to act on the bank ’s behalf . On DATE the court refused to vary its order , holding that by law that was not possible .

On DATE proxies representing the CARDINAL companies listed in paragraph CARDINAL above showed up at the bank ’s LOC with a view to taking part in the general meeting of shareholders . Mr P.E.B , PERSON and PERSON , who between them held PERCENT of the bank ’s shares , were also represented . The polling commission entrusted by the bank ’s executive board to check the ORG credentials refused to accept the provisional share warrants through which the CARDINAL companies sought to establish their capacity as shareholders . Concluding that PERCENT of the shares were duly represented , the commission decided to adjourn the meeting for DATE . A dispute ensued , and the CARDINAL companies’ proxies held a parallel general meeting in the stairwell of the bank ’s building . They resolved to amend the bank ’s articles of association , reduce the number of members of its executive and supervisory boards from CARDINAL , remove CARDINAL members of the supervisory board and CARDINAL members of the executive board , including Mr B.P. , and appoint CARDINAL new members of the supervisory board and CARDINAL new members of the executive board , who were to be also executive directors : the applicants Mr PERSON , Mr PERSON and Mr Radev .

On DATE Mr GPE ’s and the CARDINAL companies’ proxies tried to hold another general meeting of shareholders at the FAC hotel , as authorised by ORG ( see paragraph CARDINAL above ) . Mr P.E.B , PERSON and PERSON were also represented . The police showed up , trying to seize the provisional share warrants which PERSON and the CARDINAL companies’ proxies were supposed to use to establish their capacity as shareholders , but could apparently not find them . The police were acting on an order issued by the prosecuting authorities in connection with criminal proceedings concerning the genuineness of those warrants , which they had opened pursuant to complaints by PERSON ( see paragraph CARDINAL below ) . In view of the failure of the proxies to produce valid share warrants , the polling commission entrusted by the bank ’s executive board to check the ORG credentials found that PERCENT of the shares were duly represented and decided to adjourn the meeting for DATE . However , PERSON and the CARDINAL companies’ proxies held a parallel general meeting in an adjoining room , and adopted the same resolutions as the ones adopted on DATE .

On DATE the ORG , sitting in private , decided to enter the changes resolved upon at the general meeting on DATE ( see paragraph CARDINAL above ) in the register of companies . The court found that the change in the bank ’s management and the amendment of its articles of association had been duly carried out . It registered the amendment to the bank ’s articles of association and the reduction of the number of members of its executive and supervisory boards from CARDINAL . The court also struck out of the register CARDINAL members of the supervisory board and CARDINAL members of the executive board , including Mr B.P. , and registered CARDINAL new members of the supervisory board and CARDINAL new members of the executive board , who were also to be executive directors : the applicants Mr PERSON , PERSON PERSON and Mr PERSON . Lastly , the court registered Mr PERSON as chairman of the executive board . The court specified that its decision was to be entered in the register of companies and published , and that it was not subject to appeal .

The court ’s decision was entered in the register of companies the afternoon of the following day , CARDINAL DATE . In TIME a notary sent to the register of companies by ORG certified that the decision had not yet been entered in the register . DATE the court issued a certificate reflecting the changes in the bank ’s registration .

On DATE the ORG , sitting in private , decided to enter the changes and amendments resolved upon at the general meeting on DATE ( see paragraph CARDINAL above ) in the register of companies . The court found that the changes in the bank ’s management and the amendment of its articles of association had been duly made . The changes registered by the court were identical to the ones registered with its decision of DATE ( see paragraph CARDINAL above ) .

Subsequently , Mr GPE and Mr P.B. sought revision of those CARDINAL decisions and brought claims for the annulment of the shareholder resolutions whose registration they ordered ( see paragraphs CARDINAL below ) .

On DATE Mr B.P. wrote to the police and to GPE ORG , alleging that the provisional share warrants on which PERSON and Flavors , Fragrances and Chemicals ( ORG had relied to obtain the court order of CARDINAL DATE ( see paragraph CARDINAL above ) were false and did not correspond to the entries in the bank ’s register of shareholders . He pointed out that the warrants had been signed by PERSON and PERSON , and asked the authorities to open criminal proceedings and check whether any criminal offences had been committed in relation to that .

On DATE the police issued an order for Mr PERSON ’s arrest for TIME . He was arrested and released DATE . It does not appear that he has attempted to seek judicial review of his detention .

In DATE Mr PERSON and Mr PERSON were charged with making false private documents . PERSON was , for his part , charged with using a false official document . The charges were later amended : PERSON and PERSON were charged with making false official documents , and Mr PERSON was charged with knowingly using a false document .

On DATE the GPE ORG , noting that Mr PERSON and Mr PERSON had in DATE travelled extensively out of the country , which in its view meant that they could seek to evade criminal liability by fleeing abroad , banned them from leaving the country . On DATE it made the same decision with respect to PERSON .

On DATE the GPE ORG turned down PERSON ’s , PERSON and PERSON requests that the travel bans be lifted . It reasoned that , in view of the advanced stage of the pre - trial proceedings , their prolonged absence from the country might cause delays .

The preliminary investigation was completed in DATE and on DATE the CARDINAL applicants were indicted . However , finding that the indictment suffered from various defects , on DATE the ORG referred the case back to the prosecuting authorities .

On DATE the GPE ORG turned down a request by PERSON to be allowed to travel to GPE for business meetings in DATE , DATE , DATE and DATE .

On DATE the GPE ORG Office re - submitted the indictment , and on DATE the ORG set the case down for trial on DATE .

In the meantime , on DATE the ORG refused a request by PERSON to be allowed to travel to GPE for business meetings . It held that there was no evidence that he had a pressing need to travel there . However , on DATE and DATE the court allowed PERSON to travel abroad in DATE and DATE respectively . On DATE it allowed him to travel to GPE in DATE for a business seminar .

The GPE ORG heard the case on DATE and DATE , DATE and DATE .

At the hearing on DATE , noting that PERSON had duly appeared and had not attempted to flee during the investigation , the court allowed him to travel abroad during the period until the following hearing . On DATE the court allowed PERSON to travel to GPE in DATE for business meetings .

On DATE , DATE and CARDINAL DATE respectively the GPE ORG lifted the travel bans imposed on PERSON , PERSON and PERSON PERSON .

On DATE the GPE ORG acquitted Mr PERSON , PERSON PERSON and PERSON . Its judgment was not appealed against and became final on DATE .

On DATE and DATE respectively Mr PERSON and Mr PERSON were charged with forgery offences in connection with their participation in the general meeting of shareholders of the bank on DATE ( see paragraph CARDINAL above ) . On DATE the ORG banned them from leaving the country . CARDINAL other persons were charged as well .

On DATE Mr PERSON , Mr PERSON and their co - accused were indicted . However , finding that the indictment suffered from various defects , on DATE the ORG referred the case back to the prosecuting authorities .

On DATE the GPE ORG resubmitted the indictment . The GPE ORG heard the case on CARDINAL unspecified dates in DATE .

On an unspecified date in DATE Mr PERSON and PERSON PERSON asked the Sofia District Court to lift the travel bans . In a decision of DATE the court refused their request , but on DATE lifted the bans .

On DATE the GPE ORG acquitted Mr PERSON , PERSON PERSON and their CARDINAL co - accused . On DATE the prosecution appealed but then withdrew its appeal , and on DATE the ORG discontinued the appeal proceedings .

On DATE Mr PERSON , Mr PERSON and Mr PERSON entered into service contracts with the bank , represented by a member of its supervisory board . They undertook to sit on the bank ’s executive board for DATE following the registration of the resolutions of the general meeting of shareholders to appoint them as members of that board . In return , each of them was to receive a DATE salary of MONEY ( ORG ) plus a host of other benefits .

The same day Mr PERSON and Mr PERSON tried to take up their duties , but the bank ’s former management refused to vacate their offices and called the police , saying that they were not aware of any resolution to remove them . DATE , CARDINAL DATE , the bank ’s former management forced the applicants out of the bank ’s building , with help from the police . It appears that the police were acting on orders from the prosecuting authorities ( see paragraph CARDINAL below ) .

On DATE the Sofia City Prosecutor ’s Office ordered the police to assist Mr B.P. in preventing any changes in the status quo in the bank ’s management and operations , and to warn Mr PERSON , Mr PERSON and Mr DATE , a newly registered member of the bank ’s supervisory board , to refrain from any actions in relation to that until the matter had been duly resolved by the competent authorities . It relied on section CARDINAL(CARDINAL)(CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , and reasoned that ORG decision of DATE ( see paragraph CARDINAL above ) was being verified by ORG , that the record drawn up by the notary public ( see paragraph CARDINAL above ) made it apparent that that decision had not been entered in the register of companies , which meant that it did not in fact exist , that Mr B.P. had applied to ORG to reopen the proceedings and annul that decision ( see paragraph CARDINAL below ) , and that by trying to put the decision into effect Mr PERSON , Mr PERSON and PERSON DATE were interfering with the bank ’s normal business . The prosecutor found that , in view of the possibility for them to dispose of the bank ’s documents and assets and imperil the interests of the bank ’s depositors , that gave rise to a real risk of irreparable damage .

Mr PERSON , Mr PERSON and Mr PERSON appealed to ORG , arguing that the order was unlawful and arbitrary . They pointed out that GPE decision was valid and immediately enforceable , that no appeal lay against it to ORG , and that the prosecuting authorities had no power to stay its enforcement . The question whether a judicial decision had been entered in the register of companies was to be established on the basis of official documents issued by the competent court , not of a record drawn up by a notary public outside his competence . The certificate issued by ORG ( see paragraph CARDINAL above ) showed that its decision had in fact been duly entered in the register of companies .

On DATE the ORG dismissed the appeal . It noted that ORG had been spurred into action by information , given to it by GPE ORG , that ORG decision to make changes in the bank ’s registration might have been based on false documents . At the time when GPE Prosecutor ’s Office had issued its order , ORG decision had not yet been entered in the register of companies . Proceedings against that decision were pending before ORG . All of that showed that until GPE ORG had completed its inquiry into the matter or until ORG had given judgment , there would continue to exist a risk of changes in the status quo and irreparable damage to the bank .

Mr PERSON , Mr PERSON and Mr PERSON appealed to ORG , reiterating their arguments .

On DATE ORG dismissed the appeal . It reasoned that it was beyond doubt that the prosecuting authorities were faced with a judicial decision under challenge and with evidence that that decision had been obtained through the use of false documents . Moreover , the decision had been issued in spite of a decision staying the registration proceedings and the existence of pending contentious proceedings . The appellants’ argument that ORG had no jurisdiction to hear a legal challenge against ORG decision was unavailing because the prosecuting authorities were not competent to make pronouncements on such points . Faced with pending judicial proceedings and a pending criminal investigation , they were bound to take measures to prevent changes in the status quo before any judicial resolution of the matter . The appellants’ attempts to change that status quo were premised on rights acquired through a judicial decision based on false documents . It was necessary for the judiciary to check the lawfulness of that decision and for the investigating authorities to gather evidence with a view to uncovering the truth . The bank had to be protected against damage flowing from offences that had already been committed and from the risk of future offences . The prerequisites of section CARDINAL(CARDINAL)(CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) were therefore in place .

Mr PERSON , Mr PERSON and Mr PERSON appealed to ORG , arguing that the prosecuting authorities had acted in a patently unlawful way and in excess of their powers . Their decisions had been based on false findings of fact , and on the finding – not based on a final conviction – that offences had been committed by them .

On DATE the head of the economic crime division of ORG , to whom the case had been assigned , dismissed the appeal . He reasoned that the prosecuting authorities had acted lawfully and within their powers under section CARDINAL(CARDINAL)(CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . ORG was investigating the making of false documents with a view to obtaining changes in the bank ’s registration , and ORG decision had been challenged before ORG . There had therefore been a need to preserve the status quo with a view to ensuring the normal operation of the bank .

DATE , DATE , GPE District Prosecutor ’s Office ordered the police to take measures to ensure compliance with ORG Office ’s order of CARDINAL DATE ( see paragraph CARDINAL above ) and the preservation of the status quo in the bank . It noted that criminal proceedings had been instituted against members of the bank ’s newly appointed management in relation to documentary offences , and that information existed that a group of persons had tried to enter the bank ’s LOC . Mr GPE and the applicants Mr PERSON and Mr PERSON had complained to the prosecuting authorities in relation to that . Since the criminal proceedings concerned allegations of using false documents to obtain judicial decisions to make entries in the register of companies , it was appropriate to maintain the status quo pending the resolution of the case . Indeed , this had already been ordered by the higher prosecutor ’s offices , whose decisions were mandatory for the Sofia ORG . The decision did not mention the legal provisions on which it was based .

In DATE Mr PERSON wrote a number of letters to ORG and tried to meet him in person with a view to obtaining the quashing or varying of the above ORG decisions , to no avail . He also lodged complaints with the Minister of ORG and ORG .

On DATE the CARDINAL companies listed in paragraph CARDINAL above transferred their shares to PERSON by endorsing the provisional share warrants issued in DATE . As a result , he became the owner of PERCENT of the bank ’s shares . The companies submitted that PERSON paid part of the GPE price immediately and undertook to pay the remainder when the transfer would be registered in the bank ’s register of shareholders . The companies submitted that they could not obtain the remainder of the price because the bank ’s former management , who were de facto running the bank by virtue of the ORG decisions outlined in paragraphs CARDINAL - CARDINAL above , refused to register the transfer .

On an unspecified date in DATE Mr B.P. and PERSON sought revision of ORG decisions of CARDINAL and DATE ( see paragraphs DATE and CARDINAL above ) .

In CARDINAL decisions of DATE ( опр. № CARDINAL от GPE г. по гр. д. № CARDINAL г. , ORG , ORG т. о. , and опр. № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по гр. д. № CARDINAL г. , ORG , ORG т. о. ) a CARDINAL - member panel of ORG refused to examine the requests , holding that judicial decisions making entries in the register of companies were not subject to revision . Such decisions did not determine disputes between opposing litigants and did not enjoy res judicata . The proper way to contest entries in the register of companies obtained by criminal means was by way of a claim under LAW of LAW DATE aiming to have the entries erased under LAW ( see paragraph DATE below ) . Mr ORG and PERSON appealed . In CARDINAL decisions of DATE ( опр. от CARDINAL г. по гр. д. № DATE г. , ORG , петчл. с-в , and опр. № CARDINAL от CARDINAL г. по гр. д. № DATE г. , ORG , петчл. с-в ) a CARDINAL - member panel of ORG upheld the CARDINAL - member panel ’s rulings , fully agreeing with them .

In the meantime , Mr GPE and Mr P.B. brought claims against the bank under LAW of LAW DATE ( see paragraph CARDINAL below ) , asking ORG to annul the resolutions of the general meetings of shareholders held on DATE ( see paragraphs CARDINAL and DATE above ) .

In CARDINAL judgments of DATE and DATE , ORG allowed the claims and annulled all resolutions adopted by the CARDINAL meetings . It found that the meetings had been adjourned by the polling commission for lack of quorum and had not taken place , and that the parallel meetings had not been valid , chiefly because the persons who had taken part in them had not established their capacity as shareholders on the basis of valid provisional share warrants .

Following appeals by the bank , represented by the management appointed in DATE ( see paragraphs CARDINAL and DATE above ) and registered by ORG in DATE ( paragraphs CARDINAL above ) , on CARDINAL and DATE respectively ORG quashed those judgments and dismissed the claims . It found that the persons who had held the parallel meetings had in fact represented PERCENT of the bank ’s capital . The bank ’s records , which fully matched those of the BNB , and a document issued by PERSON in his capacity as executive director on DATE of the meeting , showed that they had indeed been shareholders in it .

On appeals by PERSON and PERSON , in CARDINAL judgments of DATE and DATE ( реш. № CARDINAL от CARDINAL по т. д. № DATE г. , ORG , ORG т. о. , and реш. № CARDINAL от DATE по т. д. № DATE г. , ORG , ORG т. о. ) ORG quashed ORG judgments and annulled the resolutions of the CARDINAL general meetings . It held that , where nominative shares which had still not been issued were concerned , the only way of proving that a person was a shareholder entitled to take part in a general meeting was by producing a valid provisional share warrant . This had not happened at the CARDINAL meetings . They had therefore been held by persons whose capacity as shareholders had not been duly established , and all resolutions adopted by them were unlawful .

On DATE and DATE ORG , acting of its own motion ( see paragraph DATE below ) , and noting that the resolutions of the general meetings of CARDINAL and DATE had been ultimately annulled by ORG , erased the entries in the register of companies relating to those resolutions .

DATE and DATE the applicants repeatedly asked the BNB to exercise its supervisory powers and take measures to resolve the bank ’s situation . On DATE the BNB wrote to ORG with a view to elucidating the effect of the ORG decisions outlined in paragraphs CARDINAL - CARDINAL above on the bank ’s management , but apparently did not receive a reply .

On DATE the ORG ’s deputy - governor in charge of banking supervision noted that Mr PERSON and Mr PERSON , who had been duly registered as members of the bank ’s executive board , were being prevented from carrying out their duties as a result of the decisions of the prosecuting authorities ( see paragraphs DATE above ) . That made it impossible for the bank ’s executive board to function . The attempts to approach the Chief Prosecutor with a view to solving the problem had proved unfruitful . At the same time , a check of the bank ’s finances carried out in DATE showed that its credit portfolio was deteriorating due to the ever more frequent failure of its debtors to service considerable loans extended by the bank , and that the bank was not carrying out proper creditrisk assessments . All of that seriously affected its stability and the interests of its creditors and depositors . It was therefore necessary to take urgent measures to solve the problem with the bank ’s management . The BNB ’s deputy - governor accordingly decided to call a meeting of the bank ’s supervisory board on DATE with a view to taking measures , possibly including replacing the members of the bank ’s executive board , that could allow the bank to be effectively managed . The order specified that it was immediately enforceable and not subject to judicial review .

DATE , DATE , the bank ’s supervisory board held a meeting at which it resolved to relieve PERSON of his duties as executive director of the bank and member of its executive board , and to appoint a Mr FAC in his stead . The board noted that Mr PERSON ’s removal was not due to any failure on his part but to factors beyond the bank ’s control . DATE , DATE , the BNB informed the bank that it gave its regulatory approval to the changes in the bank ’s executive board .

On DATE Mr PERSON and Mr PERSON asked ORG to register the supervisory board ’s resolution . On DATE Mr ORG and PERSON brother , PERSON , acting in their capacity as shareholders in the bank , asked the court not to proceed with the registration pending the outcome of the proceedings in which PERSON and PERSON had challenged the resolutions of the general meetings of shareholders of CARDINAL and DATE ( see paragraph CARDINAL above ) . On DATE the court upheld that latter request , noting that the general meeting ’s resolutions under challenge included the CARDINAL to appoint the supervisory board whose resolution the court was being asked to enter in the register of companies . This registration was therefore to be adjourned pending the outcome of the proceedings against the general meeting ’s resolutions .

In DATE the BNB repeatedly instructed the bank to take steps to overcome its financial difficulties . On DATE it noted that , contrary to a statutory rule prohibiting banks from exposing CARDINAL of their capital to any CARDINAL debtor , the bank had , DATE , extended a large loan to a company . In spite of the ORG ’s instructions to fix that , the bank later had , on the contrary , vastly increased its exposure to that company . It was also overly exposed to other debtors , and faced with a serious deterioration of its credit portfolio , with ever more frequent failures by its CARDINAL principal debtors to service their loans . That required the bank to increase its non - performing loan provisions , but doing so would deplete its capital to a level requiring revocation of its licence . The BNB therefore asked all persons engaged with running the bank to join efforts to remedy its situation , and instructed the bank immediately to bring its exposure into line with the statutory requirements and collect its overdue loans from CARDINAL companies and all of its loans from another company . The ORG also barred the bank from taking in new term deposits , except from shareholders , and warned it that failure to comply with those instructions would lead to harsher measures , including the appointment of special administrators or revocation of its licence .

On DATE the ORG ’s deputy - governor in charge of banking supervision decided to place the bank under compulsory administration and to appoint CARDINAL special administrators to run it for DATE . She noted that it had already been established that the bank ’s financial situation had substantially deteriorated and that its capital was below the amount required by law , which called for immediate remedial action ; in particular , the collection of some of the loans extended by the bank . Despite instructions to that effect by the ORG and a warning that failure to act would trigger harsher measures , the bank ’s management had not taken such action . A report by an inspector appointed by the ORG showed that the bank ’s liquidity was worsening DATE . The bank was therefore at risk of insolvency that its shareholders and management had not taken steps to avert . There was uncertainty in relation to the persons running the bank : those actually doing so no longer featured in the register of companies and were not in law entitled to act on the bank ’s behalf , whereas those featuring in the register could not in fact do so because of the decisions of the prosecuting authorities ( see paragraphs DATE above ) . That threw doubt on the reliability of the reports which the bank was submitting to the BNB ; there were reasons to believe that its financial situation was worse than transpiring from these reports . At the same time , the infighting between the bank ’s shareholders precluded outside assistance . All that showed that the interests of the bank ’s depositors were at serious risk , and the BNB had no choice but to place it under administration and appoint special administrators to run it . The BNB specified that its order was immediately enforceable and not subject to judicial review .

In DATE the special administrators invited the bank ’s management and shareholders to take steps to resolve the bank ’s situation . PERSON entered into settlements with the other shareholders – his brother , PERSON and Mr P.B. DATE whereby they agreed to resolve the disputes between them . PERSON also tried to find companies which would take over the non - performing loans extended by the bank . However , on DATE the special administrators wrote to PERSON , advising him that the results of an audit that they had ordered showed that the only way to prevent the bank from sliding into insolvency was to sell its risky loans immediately . The administrators went on to say that if PERSON was serious about preventing that from happening , he had to buy those loans before TIME DATE , DATE . Otherwise , the administrators would be bound to notify the ORG that the bank was insolvent .

On DATE the applicants wrote to the ORG ’s governor and deputy - governor , complaining of undue pressure and improper conduct on the part of the special administrators , and saying that CARDINAL of them was forcing PERSON to sell his shares in the bank on very unfavourable terms .

DATE , DATE , the ORG ’s governor , relying on section CARDINAL ) and ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , and acting on a recommendation by the deputy - governor in charge of banking supervision , revoked the bank ’s licence and extended the term of office of the CARDINAL special administrators previously appointed to run the bank ( see paragraph CARDINAL above ) . He noted that a report by those administrators filed DATE and the documents enclosed with it , all of which had been drawn up in line with the ORG ’s requirements , showed that the bank ’s liabilities exceeded its assets by ORG MONEY and that its capital was negative – minus BGN CARDINAL . It was thus clear that the bank was insolvent , and that the BNB had to revoke its licence and petition the courts to open winding - up proceedings against it . The special administrators previously appointed to run the bank were to continue to carry out their duties pending the appointment of liquidators by the court . The governor specified that his decision was immediately enforceable and not subject to judicial review .

DATE . Following its decision to revoke the bank ’s licence , on DATE the ORG petitioned ORG to declare the bank insolvent and wind it up . As required by law ( see paragraph CARDINAL below ) , in those proceedings the bank was represented by the special administrators previously appointed by the BNB ( see paragraphs CARDINAL and CARDINAL above and paragraph CARDINAL below ) .

PERSON sought leave to intervene as a third party , citing concerns that the special administrators would not strive to protect the bank ’s best interests . On DATE the ORG turned down his request , holding that the Bank Insolvency Act CARDINAL set out in an exhaustive manner the persons entitled to take part in such proceedings ( see paragraph CARDINAL below ) . PERSON appealed , arguing that he had an interest to take part in the proceedings in his capacity as shareholder in the bank . In a final decision of DATE , ORG dismissed the appeal . It agreed with the lower court , and added that PERSON did not have an interest to take part in the proceedings because , being merely a shareholder in the bank , he would not himself be bound by the NORP decisions in relation to it .

In a decision of DATE , ORG granted the ORG ’s petition , declared the bank insolvent , made an order for it to be wound up , divested its decision - making bodies of their powers and the bank of the right to administer its property , and ordered the sale of its assets . Relying on ORG judgment at issue in ORG AD v. GPE ( no . CARDINAL , § CARDINAL , DATE ) , the court held that , unlike the position with regular companies , the fact that a bank was insolvent was conclusively determined by the ORG . The construction of the applicable statutory provisions ( see paragraph CARDINAL below ) showed that the insolvency court could not scrutinise that determination , and , faced with a decision by the BNB to revoke a bank ’s licence and a facially valid winding - up petition lodged by the BNB , it was bound to declare the bank insolvent and make an order for it to be wound up . The decision was not appealed against . Immediately after it ORG appointed liquidators from among the list of persons eligible to serve as liquidators kept by the BNB ( see paragraph CARDINAL below ) .

On DATE ORG DATE bought all of the bank ’s assets for CARDINAL NORP lev and undertook to satisfy the claims of its creditors which had been accepted by its liquidators . On DATE ORG approved the transaction . It found that it would result in a higher rate of repayment of the bank ’s debts than if its assets were to be sold piecemeal over a protracted period of time .

On DATE the ORG closed the winding - up proceedings in respect of the bank and struck it out of the register of companies .

On DATE the BNB informed PERSON and PERSON that following the revocation of the bank ’s licence , all of their bank accounts were being frozen , as required under paragraph PERSON ) of the transitional and concluding provisions of ORG DATE ( see paragraph CARDINAL below ) . They would be unfrozen DATE after the ORG had applied for the opening of insolvency proceedings against the bank , unless in the meantime Mr PERSON and Mr PERSON had been charged with a criminal offence in relation to that , or unless the bank ’s liquidators had brought a claim against them .

On DATE Mr PERSON and Mr PERSON protested against the freeze , pointing out that as a result of the prosecuting authorities’ decisions set out in paragraphs CARDINAL - CARDINAL above they had in effect never been able to take up their duties and therefore did not fall under that provision . On DATE the ORG replied that it did not have discretion to unfreeze the accounts .

On DATE Mr PERSON and Mr PERSON asked the BNB to unfreeze their accounts as the DATE period laid down in paragraph PERSON ) of the transitional and concluding provisions of ORG DATE ( see paragraph CARDINAL below ) had expired . Finding that no criminal proceedings or claims by the bank ’s liquidators had been brought against Mr PERSON or Mr PERSON within DATE , on DATE the ORG unfroze the accounts .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Administrative proceedings;Criminal proceedings) (Article 6 - Right to a fair trial;Administrative proceedings;Criminal proceedings;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano

NORP The applicant company , ORG , is a private NORP company that was set up in DATE and has its registered office in PERSON .

In DATE the applicant company established a regional television channel , ORG , with the intention of broadcasting in the local region .

On DATE the applicant company was granted a licence by ORG ( “ the ORG ” ) permitting it to broadcast in PERSON , the second largest town in GPE , and the surrounding area . The licence was granted for DATE . ORG was CARDINAL of CARDINAL television stations operating in PERSON and , according to the applicant company , it was widely recognised as one of the few independent voices in television broadcasting in GPE .

From DATE to CARDINAL DATE ORG ( “ the ORG ” ) conducted an inspection of the applicant company ’s accounts . As a result , on DATE it issued a report stating that the applicant company had a high tax liability for DATE and ordered it to pay CARDINAL NORP drams ( ORG ) ( MONEY ( ORG ) ) , including surcharges and fines . The report stated that the indicated amounts were payable to the ORG budget within DATE .

The ORG established in its report that the applicant company had underreported its tax liability by hiding income earned from advertising . The report also stated that the applicant company had failed to include the prices for its services in its invoices or keep records , as required by ORG . Furthermore , it was alleged that the applicant company had manufactured and sold fireworks without a government licence .

The ORG ’s report was based , inter alia , on :

a ) documents requested from and subsequently submitted by ORG A. , the head of the ORG ;

b ) statements by the heads of companies and individual businessmen that they had placed advertisements on ORG but had not received any documents acknowledging payment to the applicant company for such services .

The applicant company objected to the allegations of tax evasion as fabricated and politically motivated as home - made advertisements that had a social function , which ORG had broadcast for free , had been taken into account by the authorities in calculating the tax arrears .

On an unspecified date the ORG instituted criminal proceedings against the applicant company ’s chief executive , GPE , for tax evasion . The investigating authorities discontinued the proceedings after the required amount had been paid .

Having received no payment from the applicant company as regards the amounts stated in its report of CARDINAL DATE , on CARDINAL DATE the ORG brought a claim with ORG to oblige the applicant company to pay ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in tax debt and to freeze its bank accounts and other assets in the amount of the alleged tax shortfall .

On DATE ORG admitted the case to its proceedings and at the same time dismissed the application to freeze the applicant company ’s bank accounts .

On DATE ORG approved a freezing order on the applicant company ’s assets as security for the claim .

On DATE the applicant company brought a counterclaim against the ORG , challenging the results of the tax inspection . It argued , inter alia , that the relevant statements obtained from the heads of companies and individual businessmen , as well as the information obtained from ORG A. , could not be used as evidence to support the findings of the ORG in its report .

On DATE the applicant company ’s case was transferred to ORG , which had been set up as part of a reform of the court system DATE .

On DATE ORG admitted the case .

On DATE the applicant company ’s lawyer lodged an application to obtain and examine the tax records of the companies that had advertised on ORG and had been inspected by the ORG . He claimed that those tax records contained tax reports and other documents which could rebut the evidence submitted by the ORG . This application was rejected .

On DATE the applicant company ’s lawyer also asked ORG to summon , inter alia , the heads of the relevant companies and the businessmen , namely ORG , PERSON , FAC , PERSON , G.A. and PERSON to whose statements the ORG had referred in its report .

By another application submitted on the same date the lawyer asked ORG to summon PERSON . A. to testify about the information and documents he had provided to the ORG and confirm the veracity of those documents .

The applicant company ’s applications were rejected by ORG , which considered the witness evidence in question as irrelevant .

On DATE ORG granted the ORG ’s claim against the applicant company in part . It annulled the ORG ’s report in respect of a charge of ORG CARDINAL ( approximately ORG CARDINAL ) imposed on the applicant company for the alleged illegal production and sale of fireworks . ORG decided to levy a total charge of ORG CARDINAL ( approximately EUR CARDINAL ) on the company , including ORG DATE ( approximately EUR CARDINAL ) for ORG ) , comprising arrears , a PERCENT fine and surcharges for late payment ; ORG CARDINAL ( approximately ORG CARDINAL ) for profit tax , comprising arrears , a PERCENT fine and surcharges for late payment ; and AMD CARDINAL ( approximately EUR CARDINAL ) for the tax authority ’s development fund . ORG referred to the relevant provisions of ORG Added Tax and the PERSON on Taxes when imposing the surcharges and fines . In establishing the applicant company ’s ORG and profit tax liability , it relied , inter alia , on the documents provided by ORG A. and the statements of ORG , PERSON , FAC , PERSON , G.A. and PERSON which had been referred to in the ORG ’s report . The amount of court fees to be paid by the applicant company was calculated at ORG CARDINAL,CARDINAL ( QUANTITY ) .

On DATE the applicant company lodged an appeal on points of law with ORG .

On DATE ORG returned the applicant company ’s appeal on the grounds that it had failed to pay the correct amount of ORG fee and set a deadline for resubmission .

After paying the required ORG fee , the applicant company resubmitted its appeal on DATE .

On DATE ORG declared the applicant company ’s appeal on points of law inadmissible for lack of merit .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in DATE and lived in GPE . He died on DATE .

On DATE the applicant was detained on remand by the “ Police of the Republic of NORP LOC ” ( PERSON ) under suspicion of murder . His detention was subsequently extended by the “ investigative judge ” ( istražni sudija ) on DATE and by the “ ORG of Beli Manastir ” ( ORG GPE ) on DATE , CARDINAL DATE , DATE and CARDINAL DATE .

On DATE the “ ORG of ORG ” sentenced the applicant to DATE of imprisonment for murder . It found that the applicant , after a quarrel in which his neighbour accused him of war profiteering , intentionally shot the neighbour in the head with a rifle , leaving him dead on the spot . It further found that the entire event had taken place in front of several eyewitnesses .

On DATE this sentence was confirmed by the “ ORG of GPE ( PERSON ) . The applicant was then sent to serve his prison sentence in “ ORG ” ( ORG zatvor u GPE ) .

All of the above institutions were at the relevant time under the control of the “ Republic of NORP LOC ” ( PERSON ) , an internationally unrecognised self - proclaimed entity established on the territory of GPE during the wars in the former GPE . The entity ceased to exist after the adoption of LAW , PERSON and ORG of DATE ( hereinafter ORG ) by which GPE assumed sovereignty over the entirety of its territory . The entity was never recognised as a state by ORG .

Shortly after the adoption of LAW , and upon the request of the “ ORG ” , the applicant was transferred on DATE to ORG prison ( ORG - popravni zavod ORG ) , which is on the territory of ORG . The reason for the transfer was listed as “ security concerns ” . No proceedings for recognition and enforcement of a foreign prison sentence were conducted by the authorities of GPE .

The applicant remained in ORG prison until DATE , when he was released for DATE leave until DATE . Due to the applicant ’s failure to return to the prison on the specified date , a warrant for his arrest was issued .

On DATE , the applicant was arrested when he attempted to enter GPE from GPE . He was sent to ORG prison to serve the remainder of his sentence .

The applicant remained in prison until DATE when he was pardoned by the President of GPE and released .

On DATE the applicant lodged a constitutional appeal challenging the lawfulness of his imprisonment .

On CARDINAL DATE ORG found that there was no violation of the applicant ’s right to liberty . It concluded that the legal ground for the applicant ’s detention was his conviction by ORG of NORP LOC ” of DATE . It further noted that the procedure governing the recognition of a foreign criminal sentence and its enforcement was not applicable in the applicant ’s case because NORP LOC was not a state . The court concluded that the applicant ’s transfer had been carried out for factual reasons – the deteriorating security situation in the war zone which could lead to the applicant ’s escape from prison or his death . The court further noted that the applicant had been convicted of murder by which the right to life was violated , and that states have positive obligations to protect this right . It finally held that the lack of procedure for recognition of a foreign judgment was proportionate to the obligation to enforce a prison sentence for murder especially given that the applicant had access to ORG which had the power to review the legality of his detention and that he had access to other procedures available to any other prisoner in GPE , including the procedure for applying for a pardon .

On DATE the applicant initiated civil proceedings for compensation for unlawful imprisonment . On CARDINAL DATE ORG in GPE rejected the applicant ’s claim finding that he had been lawfully convicted of murder by the courts of the “ Republic of Srpska Krajina ” and that his imprisonment can not be considered as unlawful . On DATE the GPE ORG confirmed this judgment . On DATE the applicant lodged an appeal on points of law before ORG . On DATE ORG rejected the applicant ’s appeal on points of law on procedural grounds , finding that the value of the dispute in question was below the applicable statutory threshold .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

In DATE the applicant graduated from ORG with a degree in law . He worked as an investigator at ORG city police headquarters .

On DATE the ORG established that from DATE , when he had been working as an investigator , the applicant had several times solicited and sometimes succeeded in getting bribes for discontinuing criminal proceedings . The victims of the applicant ’s crimes , who were suspects in criminal proceedings or their relatives , had been threatened and sometimes harassed sexually by the applicant . He would tell them that “ the case would end badly ( blogai baigsis ) ” if they did not meet his demands . ORG found that such actions amounted to the intentional crimes of abuse of office ( LAW ) and bribery ( LAW ) . The court also noted that the applicant had not acknowledged his guilt , but had instead tried to justify his criminal acts and avoid taking responsibility for them in any way possible . The trial court sentenced him to CARDINAL years’ deprivation of liberty in a correctional labour colony under a strict regime , ordered the confiscation of all his property , and prohibited him from working in law enforcement or the justice system for DATE .

The applicant ’s conviction was upheld by ORG on DATE and by ORG on DATE .

In DATE , upon entry into force of the new Criminal Code , ORG requalified the applicant ’s sentence to DATE and CARDINAL months’ deprivation of liberty . The applicant was released from prison on DATE after serving his sentence .

By a ruling of CARDINAL DATE ORG expunged the applicant ’s conviction from his criminal record . The court noted that the applicant had served his sentence . He had been convicted of crimes of medium severity . The court also took account of the fact that the applicant had not committed any violations of administrative law , had been bringing up a child alone , had been described in positive terms by people at his place of residence and at his workplace , had drawn the right conclusions from the crimes he had committed , and had promised not to commit any crimes in the future . The ruling was not appealed against and became enforceable .

According to the applicant ’s curriculum vitae , which he later submitted to ORG , from DATE he worked as in - house lawyer and loan administrator in various private companies .

On DATE the applicant wrote to ORG , which regulates advocates ( lawyers admitted to the Bar , advokatas ) , requesting to be admitted as a trainee advocate . He asked that an advocate V.S.B. be appointed as his supervisor in his work practice . The applicant also confirmed in writing that “ none of the grounds listed in the PERSON on the Bar prevented him from being put on the list of trainee advocates ” . The applicant also submitted a written application ( advokato įskaitos lapas ) where he listed his former places of employment , stating that from DATE until DATE he had worked in the police and from DATE in the private sector . There was no explanation about the period DATE .

ORG placed the applicant ’s name on the list of trainee advocates on DATE and advocate ORG was appointed as his supervisor .

On DATE ORG received a letter from a private person , GPE , informing it that the applicant had withheld information from ORG that he had been previously convicted .

On DATE ORG held that by failing to inform it of the conviction , the applicant had withheld information relevant to assessing his reputation , and that therefore he had shown that his attitude towards the standing of ORG and towards becoming a trainee advocate was not honest and respectful . ORG considered that the applicant had breached points CARDINAL , CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below – hereinafter , “ the Code of Ethics ” ) , and disciplinary proceedings against him were therefore justified . ORG also considered that the applicant ’s supervisor , ORG , had likewise breached LAW but that he would not face disciplinary proceedings owing to his long and positive professional record .

On DATE ORG of ORG held that the applicant had committed a disciplinary violation by withholding information about his conviction by ORG on DATE ( see paragraph CARDINAL above ) . The committee emphasised the fact that the applicant had not mentioned the conviction or his “ long prison sentence ” in his application to be admitted as a trainee advocate , his curriculum vitae or in the other documents submitted in support . Information about the conviction had been relevant for assessing his reputation . By withholding such information the applicant had acted dishonestly and disrespectfully , and had not protected the prestige of ORG . The applicant had thus breached points CARDINAL , CARDINAL and CARDINAL of the Code of Ethics , which set out the necessary requirements for candidates to become trainee advocates ( see paragraph CARDINAL below ) . The case therefore had to be decided by ORG ( hereinafter DATE “ ORG ” ) .

In a letter of CARDINAL DATE to ORG the chief prosecutor of ORG wrote that the applicant lived in the city of ORG and that in the course of his work as a trainee advocate he had interaction with the same investigators , prosecutors and judges with whom he had worked before committing his crimes and with those who had later investigated his crimes or examined his case in court . Even though the applicant had served his sentence , communication with those investigators , prosecutors and judges caused some strains at work in ORG . The chief prosecutor stated that it would be better if the applicant could be prevented from practising law in the city or region of ORG , even though the PERSON on the Bar did not provide for the possibility to restrict an advocate ’s activity within or outside a certain area .

By a letter of CARDINAL DATE ORG informed the applicant about the forthcoming hearing in his case , and invited him to participate in person or have an advocate represent his interests in those disciplinary proceedings . The applicant was present at the hearing , and explained that he had not hidden his conviction . The only reason he had not informed ORG about it was because in his view there had been no requirement to do so . He also asked for the removal of the president of ORG , PERSON , stating that the manner in which the latter had put certain questions to him showed he was biased . The request was refused as unfounded .

ORG , composed of the presiding advocate , PERSON , and CARDINAL other advocates , ORG and FAC , met on DATE and CARDINAL DATE . They postponed the hearing to a later date on each occasion .

On DATE ORG rejected a request by the applicant to remove PERSON as unsubstantiated , while PERSON was replaced by another advocate , PERSON

ORG also held on DATE that the applicant had breached LAW and imposed the disciplinary measure of ordering his removal from the list of trainee advocates , on the basis of LAW § CARDINAL and CARDINAL § CARDINAL of the PERSON on the Bar ( see paragraph CARDINAL below ) . In setting out its reasons ORG had regard to the crimes committed by the applicant and noted that during the criminal court proceedings he had expressed no remorse ( see paragraph CARDINAL above ) . For ORG , even though the law did not directly require that a person disclose a prior conviction when submitting a request to become a trainee advocate , such an obligation stemmed from DATE ) of the Law of the Bar , which required candidates to be of high moral character ( nepriekaištinga reputacija ) . Similarly , point CARDINAL of the Code of Ethics set out that an advocate had to act honestly and ethically , even if certain acts or behaviour that did not meet the requirements of the PERSON on the NORP or the Code of ORG were not described specifically in that Code ( see paragraph CARDINAL below ) . ORG considered that the crimes which the applicant had committed whilst working in law enforcement had been cynical and had shown great disrespect towards society . Moreover , he had committed those crimes while working in the legal field . In the light of such considerations , ORG was convinced that the applicant , who had a university degree and had previously had a law - related job , had deliberately withheld information about his prior conviction , because he had been aware that , if information not only about his crimes but also about the manner in which he had committed them had come to light , then ORG would have rejected his application to become a trainee advocate . Lastly , ORG noted that the profession of advocate was defined not only by legal acts , but also by certain ethical rules , historic practices and society ’s legitimate expectations as to the assistance an advocate was to provide as part of his or her role . An advocate should therefore always adhere to the moral and legal standards and obligations , protect the professional honour and dignity of advocates and do nothing that would discredit the good name of the profession , the advocate ’s oath , or the notion of justice .

The applicant challenged the above decision before ORG . He argued , inter alia , that there had been procedural beaches and that ORG had not been impartial . He also maintained that the concept of high moral character applied to advocates was too strict when compared with the requirements for bailiffs or civil servants .

On DATE ORG dismissed the applicant ’s appeal as unfounded . It dealt with the applicant ’s allegations about procedural violations by ORG by noting that that court had merely postponed the case on DATE and DATE , without examining it on the merits ( see paragraph CARDINAL above ) . The applicant ’s suggestion that ORG had issued a ruling on either of those dates that the applicant had not committed a disciplinary violation was therefore unfounded . Furthermore , PERSON , the advocate who had been the president of ORG , had been questioned as a witness by ORG and had testified that he had not been biased against the applicant ; he had only had an opinion about the particular actions performed by the applicant . Moreover , the applicant ’s allegation about a lack of impartiality on the part of PERSON had also been dismissed as unfounded by ORG . Lastly , the change in the composition of that court when the case had been decided on DATE , removing ORG , a member said by the applicant to have been favourable to him ( see paragraph CARDINAL above ) , had not been a decisive factor because the court had been unanimous in its finding against the applicant . ORG thus dismissed the applicant ’s request to summon for questioning advocate PERSON , who , according to the applicant , had participated in the hearing when his case had gone before ORG . On the basis of the written evidence , the first - instance court established that ORG had not taken part in the disciplinary proceedings against the applicant .

As to the question of the applicant ’s reputation , ORG had particular regard to the crimes of which he had been convicted ( see paragraph CARDINAL above ) . While observing that the conviction had expired , the court noted that the crimes had been committed when the applicant had been working in law enforcement . The manner in which those crimes had been committed and their scale did not allow for the assertion that the applicant had automatically regained the status of being of high moral character immediately after the conviction had been expunged . Were it otherwise , society ’s expectations as to the morals and ethics of representatives of the advocate ’s profession would not be met . Only people of high moral character could be trusted to work in the process of the implementation of justice . In other words , the applicant ’s actions had to be looked at to see not only if they had been in accordance with applicable laws , but also whether they had adhered to the requirements of professional ethics . That stemmed , inter alia , from DATE ) and other provisions of the LAW on the Bar , which provided that an advocate was liable to disciplinary sanctions , including disbarment , for breaches of professional ethics ( see paragraph CARDINAL below ) , and was something that had also been confirmed by ORG ( see paragraph CARDINAL below ) .

ORG concurred with ORG that the applicant had had a moral obligation to disclose important information such as a prior conviction to ORG when submitting an application to become a trainee advocate , even though that requirement had not been explicitly stated on the application form ( see paragraph CARDINAL above , advokato įskaitos lapas ) . The fact that , according to the applicant , his supervising advocate , several other advocates in ORG and some members of ORG had known about his prior conviction , did not absolve him from the obligation to provide information that was as comprehensive as possible when applying to the Bar , so that it would be possible to assess his reputation objectively and comprehensively . ORG had also been correct in holding that the applicant had consciously withheld that information because he had understood that the nature of his criminal acts would not have permitted him to be considered as a person of high moral character . In any case , if the applicant had had any doubts about whether the information about his prior conviction was relevant , he could have asked ORG . Consequently , it had been legitimate for ORG to impose a disciplinary measure on the applicant by removing him from the list of trainee advocates .

The applicant appealed , arguing , inter alia , that the rules of LAW had not applied to him at the time when he had requested to become a trainee advocate , given that they applied only to people who were already advocates and trainee advocates . According to the applicant , the president of ORG had clearly acknowledged to ORG that anyone who had disclosed a prior conviction had been admitted to the Bar and that the applicant would also have been admitted if he had done the same . The applicant also relied on LAW ( CARDINAL ) of ORG ( see paragraphs CARDINAL and DATE below ) , implying that the definition of high moral character had been interpreted too broadly by ORG .

ORG asked that the applicant ’s appeal be dismissed .

By a ruling of CARDINAL DATE ORG upheld ORG arguments and dismissed the applicant ’s appeal . It found that no violations had been committed under LAW QUANTITY CARDINAL of the Convention as regards the fairness of the disciplinary proceedings . The rules regulating disciplinary proceedings did not prohibit postponing examination of a case . Moreover , the applicant had not challenged ORG ’s participation in the disciplinary proceedings . It would also have been irrelevant to summon ORG as she had not sat in ORG when it had decided on the applicant ’s case on DATE .

As to the merits of the complaint , ORG had been correct in its interpretation of the PERSON on the Bar and of established court practice in looking at the applicant ’s crimes , their manner and scale not only in the light of the LAW on the Bar , but also taking into account the rules for advocates’ professional ethics . There had been no arguments in the applicant ’s appeal to refute the first - instance court ’s view of his crimes and behaviour in the light of those ethical requirements . Contrary to the applicant ’s submission , the first - instance court had relied on LAW and on LAW , not on LAW . The applicant ’s argument that the first - instance court had applied LAW on the Bar ( see paragraph CARDINAL below ) retroactively was therefore unfounded .

Lastly , ORG rejected the applicant ’s argument that he had had no obligation to inform ORG about his prior conviction . ORG had been correct in finding that such an obligation stemmed from the PERSON on the Bar and the Code of Ethics , which also applied to the applicant . ORG conclusion had been supported by point CARDINAL of LAW , which set out that the relationship between an advocate and the Bar was based on mutual respect and good - will assistance , and by point CARDINAL , which stated that an advocate must also adhere to the traditions and customs which corresponded to the common principles of ethics and decency ( see paragraph CARDINAL below ) . As a result , ORG had had grounds to impose a disciplinary penalty on the applicant and to strike his name off the list of trainee advocates on the basis of Articles CARDINAL § CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL of the PERSON on the Bar .

The applicant lodged an appeal on points of law . He submitted , inter alia , that the prohibition on him practising law was in breach of his rights under ORG CARDINAL and CARDINAL of the Convention . He also argued that an expired conviction should not be an obstacle for him to become an advocate . He mentioned that the stricter requirements on reputation under the amendments to LAW DATE ( see paragraph CARDINAL below ) , should not have been applied to him retroactively . For the applicant , it was also wrong to apply the Code of Ethics to actions he had committed before becoming a trainee advocate . Lastly , he was also dissatisfied by how his case had been handled by ORG , relying on LAW . He argued that all such considerations meant his case merited review by ORG because the uniform interpretation of the law was at stake .

On CARDINAL DATE ORG rejected the appeal . It restated its settled case - law ( see paragraphs CARDINAL to CARDINAL below ) that advocates and trainee advocates were part of the justice system , and were therefore not only bound by laws , but also had to protect the spirit of the law and the ideals of justice and lawfulness . Ignorance of requirements of laws discredited the advocate ’s profession and undermined its prestige . An advocate or trainee advocate who had breached imperative legal norms could not excuse that failing by alleging that he or she did not know the law or that the law was not sufficiently precise , because that person was bound to know the law and ethical requirements as part of his or her job . The activity of advocate was not only regulated by standards applicable to the general public , but also by special requirements set out in the laws regulating the advocate ’s profession and by professional ethics . The requirements for the applicant ’s behaviour , which were set out in the rules for professional ethics , were objectively necessary : only a person whose professional behaviour was beyond reproach could be entrusted to take part in the process of the implementation of justice . The notion of the implementation of justice would be discredited if any and every person was allowed to take part in that process , irrespective of his or her behaviour . The applicant ’s case therefore did not give grounds for cassation appeal because it followed established case - law and was not relevant for developing it .

On DATE the applicant attempted to submit another appeal on points of law . He drew ORG attention to ORG ruling of CARDINAL DATE to expunge his conviction ( see paragraph CARDINAL above ) .

On DATE ORG found the appeal to be essentially identical to the earlier one and refused to admit it for examination .


CASE OF CACUCI AND S.C. VIRRA & CONT PAD S.R.L. v. ROMANIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant , PERSON , was born on DATE and lives in GPE . She is an accounting expert and the owner and general manager of the second applicant , ORG , a singlemember company based in GPE . Both applicants were members of ORG ( NORP experților contabili și contabililor autorizați din GPE ) .

On DATE the criminal department of the Bihor County Police ordered a forensic accounting report in a criminal case it was dealing with . The first applicant was appointed to produce this report , which concerned pecuniary damage to the ORG budget in the sum of CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP lei ( ROL ) , allegedly caused by ORG , a private company . The first applicant ’s fees in relation to that expert report amounted to ROL CARDINAL,CARDINAL,CARDINAL .

Claiming that she had not been fully paid for the report , on DATE the first applicant submitted to the county police only approximately CARDINAL pages of the report , which actually consisted of CARDINAL pages . She only submitted the conclusions of the report . The annexes justifying the conclusions were thus not appended on that occasion , but at DATE ( see paragraph CARDINAL below ) .

The first applicant alleged that , when asked by the Police to hand in the remaining pages of the report , she had replied that the report was on her computer , and that , since she had not received any payment for it , she was not able to print it , as it was extremely long .

On DATE the first applicant , together with CARDINAL other accounting experts , was appointed by ORG to produce a forensic accounting report in a criminal case concerning tax fraud , forgery and the use of forged documents – offences allegedly committed by CARDINAL parties , ORG and ORG , in their capacity as managers of CARDINAL private companies . A fourth expert , who was assisting GPE and GPE , was also appointed to participate in producing the report .

The conclusions of the report , which was submitted on DATE by the CARDINAL experts and with which the assisting expert agreed , noted that no damage had been caused to the ORG budget by the managerial activities of GPE

ORG and ORG were acquitted on DATE by ORG . That judgment was later upheld by ORG on DATE on appeal , and by ORG on DATE in an appeal on points of law .

On DATE the prosecutor ’s office attached to ORG proposed to initiate ex officio criminal investigations against the first applicant in relation to an offence of intellectual forgery ( fals intelectual , defined by LAW ) in connection with the second forensic accounting report . The prosecutor noted that the report was based solely on documents provided by ORG , in spite of the fact that it stated that the district court ’s case file had been consulted . In the case file , there was no request from any of the experts to either consult the file or obtain copies of it . The conclusions of the report were therefore not based on all the documents on file , in spite of what the report stated .

NORP The prosecutor ’s proposal also concerned the CARDINAL other accounting experts , who were investigated for the same offence as the first applicant .

The proposal to initiate criminal investigations in respect of the first applicant was confirmed by the prosecutor ’s office on DATE .

On DATE the prosecutor ’s office attached to ORG filed an application with the court , asking it to issue a search warrant in respect of the first applicant ’s home .

The prosecutor argued that there was a reasonable suspicion that the applicant had committed intellectual forgery while producing the second forensic accounting report , in order to help CARDINAL of the defendants , ORG , avoid investigation . The grounds for this suspicion were : the report ’s conclusions contradicted the conclusions of a previous report which had been produced by another accounting expert during the criminal investigation ; the report objectives proposed by ORG had most likely been copied and pasted into the report itself , the CARDINAL documents having the same page settings , wording , spelling and grammar mistakes ; and there was no proof that the first applicant had ever studied the case file in the court ’s archives or requested copies of the documents in order to produce the expert report , therefore the report was probably based solely on information provided by GPE

The prosecutor also stated that , in accordance with the decision of DATE , a criminal investigation had already been initiated in respect of the first applicant in relation to intellectual forgery .

The prosecutor further submitted that important evidence relating to the production of the second expert report DATE such as a computer , a printer , files and documents ( whether on paper or on disc ) DATE could be obtained from the first applicant ’s home .

On DATE the GPE District Court – sitting as a single judge , Judge ORG allowed the prosecutor ’s application and issued a warrant to search the first applicant ’s home , with the aim of discovering evidence concerning the alleged offence of intellectual forgery . In accordance with the relevant domestic law , the decision was taken in camera , in the presence of the prosecutor and without summoning the parties .

The warrant was to DATE , the court stating that the search was to be carried out in compliance with LAW , CARDINAL - CARDINAL and CARDINAL of LAW ( hereafter “ the LOC ” – see paragraph CARDINAL below ) . It was formulated as follows :

“ Based on LAW , in view of the prosecutor ’s application issued on DATE and the investigative work which has been presented , namely : the TIME attesting to the decision of the prosecutor to initiate criminal investigations ex officio , confirmation of the proposal to initiate criminal investigations against PERSON in relation to the offence of intellectual forgery as set out in LAW , and the forensic reports included in the file , [ the court ] authorises that a home search ( percheziție domiciliară ) be performed at the suspect ’s place of residence , [ the suspect being ] PERSON , daughter of ... , born on ... , in GPE , ... , in LOC .

The search shall be performed in compliance with LAW , CARDINAL - CARDINAL and CARDINAL of the RCCP .

This warrant is to DATE from DATE of issue .

Given in camera on DATE at TIME ”

According to the first applicant , on DATE , while she was in the street , having just left her house , she was stopped by a police officer , who told her that he had a search warrant for her home . The first applicant asked to be assisted by her lawyer . The police officer then searched her bag , from which he seized some personal documents , including an orange notebook containing various phone numbers . Subsequently , a prosecutor entered the first applicant ’s home in order to perform the home search , accompanied by CARDINAL police officers , one of whom was an information technology ( IT ) specialist .

According to the ORG ’s version of events – supported by the documents in the file , as issued by the criminal investigating authorities ( see paragraph CARDINAL below ) – the search of the bag was carried out inside the first applicant ’s home .

The first applicant ’s lawyer arrived at the beginning of the search , namely TIME after the first applicant had been stopped in the street ( see paragraph CARDINAL above ) ; CARDINAL assistant witnesses , who were neighbours of the first applicant , were also present during the search .

NORP The prosecutor ’s notes in the search report produced on that occasion at the place of residence of the first applicant state that the first applicant was asked to surrender the items used to commit the alleged offence of intellectual forgery , namely the computer , the printer , and the documents on which the second expert report was based ( Articles CARDINAL of the RCCP , see paragraph CARDINAL below ) . The first applicant confirmed the existence of such items at her place of residence .

According to the search report , the first floor of the building was occupied by the first applicant ’s office , where she claimed to keep the objects which had been requested and other objects essential to her professional duties .

Several items and documents were found , the first applicant claiming that everything belonged to the second applicant . She showed the prosecutor a lease contract concluded between herself and the second applicant in respect of the use of CARDINAL of the immovable property .

According to the report , the following objects were seized : the computer ’s central processing unit , CARDINAL printer , CARDINAL files and documents concerning various forensic accounting reports , CARDINAL CD , QUANTITY floppy discs , an orange notebook containing several notes written by the first applicant and telephone numbers – one of which belonged to ORG , see paragraph CARDINAL above – and an empty printer cartridge box .

The applicants argued that , while the copy of the search report handed to them at that moment had made no mention of the manner in which the seized items had been sealed , the copy in the criminal file contained supplementary information on page CARDINAL , mentioning that the objects had been put in a sealed cardboard box labelled LOC ( ORG ) DATE .

At the end of the search the first applicant declared , in the presence of her lawyer , that she would submit written objections at a later stage . The witnesses had no objections concerning the manner in which the search had been carried out .

According to the report , the search started at TIME and was finished by TIME

On DATE , at the request of the prosecutor , ORG issued a warrant for a search of the computer system and IT data seized from the applicants on DATE , namely CARDINAL CD and QUANTITY floppy discs . The court gave reasons for its decision , accepting that there was sufficient indication that the IT data would prove that the impugned expert report had been partly copied from a document given to the first applicant by ORG ( see paragraph CARDINAL above ) .

The warrant was to DATE , starting on DATE .

According to the applicant , on DATE she was summoned to the LOC police headquarters to participate in the unsealing of the computer on DATE . She went there with her lawyer , where they noted that the sealed box was different to the box which had been used at her house during the search ( see paragraphs CARDINAL above ) . She therefore asked that the CARDINAL witnesses who had been present at the search be summoned to attest that the box was different , but the request was refused . Consequently , together with her lawyer , she decided to leave the police headquarters without attending the unsealing and search procedure .

On DATE the first applicant submitted the missing CARDINAL pages from the first expert report ( see paragraph CARDINAL above ) to ORG , following payment of PERCENT of her fee .

On DATE , pursuant to ORG CARDINAL - CARDINAL of the RCCP ( see paragraph CARDINAL below ) , the first applicant filed a complaint against the search carried out on DATE ( see paragraphs CARDINAL above ) . She contested both the search itself and the manner in which it had been carried out .

The first applicant submitted that the warrant had been issued only in respect of her home , and not in respect of the registered office of the second applicant . In spite of that , a search of the whole house had been carried out , including the space used by the second applicant . The seized items and documents belonged to the second applicant .

The first applicant also submitted that the search had not been necessary , and could have been avoided if she had been asked to submit the relevant items and documents , as set out in LAW ( see paragraph CARDINAL below ) . Furthermore , no reasons had been given to justify the search measure .

She argued that the limits of the search warrant had been exceeded by the search carried out in respect of her purse , which constituted a body search ( percheziţie corporală ) , and by the fact that she had been prevented from using her mobile phone during the search .

She complained of the manner in which the electronic devices seized had been sealed on that occasion .

She further referred to the seizure of various items from her home , namely “ personal documents and personal notebooks which had no connection to the criminal charge against her ” , concluding that all the above circumstances constituted evidence of a breach of her right to a private life , personal inviolability , professional secrecy , and right of property .

On DATE the head prosecutor of the prosecutor ’s office attached to ORG dismissed the first applicant ’s claims , finding that the complaint against the search measure itself was inadmissible , given the lack of specific legal provisions allowing for such an appeal , while the complaint concerning the carrying out of the search was ill - founded .

Concerning the appeal against the search measure itself , the prosecutor gave reasons for his inadmissibility decision , stating that it was inconceivable that any search warrant application would be debated in adversarial proceedings , as such a procedure would impede the very purpose of the search , namely the discovery and collection of specific evidence from a specific place without prior notice .

The prosecutor stated that the search at the applicant ’s home had been conducted in accordance with the law . The warrant had been issued in respect of her residence as stated on her identification documents . The prosecutor submitted that the investigating authorities had had no obligation to check whether that residence was also the registered office of various private companies . In the impugned forensic expert report , the first applicant had given her identification details , including her place of residence , without mentioning that the report had been issued by or on behalf of the second applicant . Moreover , during the search , the first applicant had submitted a lease contract concluded between herself and the second applicant concerning CARDINAL of the immovable property , without specifying or determining which CARDINAL belonged to which party .

The prosecutor also stated that the investigating authorities had been obliged to seize all pieces of physical evidence found at the search location , irrespective of who owned them , and that the pieces not belonging to the suspect had been returned to their owner at the end of the criminal trial .

Concerning the body search , namely the search of the first applicant ’s bag , the prosecutor submitted that the relevant forensic rules set out clearly and authoritatively that such a search had to be performed before the start of a home search , “ so as to preclude any potential act of aggression against the authorities or self - aggression , but also so as to locate and collect any potential corpora delicti thus hidden by the searched person ( in [ this ] case , documents ) ” .

The rules also provided that the investigating authorities were obliged to prevent any people inside the building in question from communicating with people outside , whether by phone or otherwise , which justified the fact that the first applicant had been temporarily prevented from using her mobile phone .

In respect of the manner in which the seized electronic devices had been sealed , the prosecutor stated that the report produced on that occasion had been signed by both the first applicant and her lawyer , and no objections had been raised . As mentioned in the report , the central processing unit of the computer had been sealed in a cardboard box with the LOC seal . In any event , the manner in which the seized objects had been sealed could not affect the legality of the search , but possibly their use as evidence in the criminal proceedings .

The first applicant contested that decision before both the prosecutor ’s office attached to ORG and ORG .

It is unclear whether any response to that complaint was given by the prosecutor ’s office . In any event , the same complaint was assessed by the domestic courts in CARDINAL separate sets of proceedings , as detailed below .

In the first set of proceedings , started by the first applicant on DATE , ORG gave its judgment on DATE , dismissing the first applicant ’s complaint as inadmissible in respect of the search measure itself , and ill - founded in respect of the manner in which the search had been carried out . The court stated that , in the event that she was indicted , the first applicant would be entitled to lodge with the criminal courts complaints regarding the search and the acts of the prosecutor .

The first applicant appealed . On DATE ORG dismissed her appeal , upholding the first instance court ’s decision . It considered that the search had been lawful and in compliance with the warrant issued by ORG . Furthermore , at the material time , the first applicant , assisted by her lawyer , had not objected to either the search or the manner in which it had been carried out .

The court considered that it would be “ abusive ” to have an adversarial procedure for debating the necessity of a search , either before or after it was carried out .

In the second set of proceedings , a complaint lodged by the first applicant on DATE reiterated the same main arguments as those presented in the proceedings described above . In particular , it referred to the fact that the limits of the search warrant had been exceeded as follows : the warrant had only been issued in respect of her home , and not in respect of the registered office of the second applicant ; no warrant had existed in respect of her purse or mobile phone ; certain items , like her personal notebooks , had been seized even though they had no connection with the criminal charge . The computer had been seized without being appropriately sealed , therefore the first applicant had refused to take it back in the absence of verification and confirmation by an expert that the IT data had not been altered . The first applicant argued that the real aim of the prosecutor and the police had been to seize her computer in order to copy the CARDINAL pages of annexes to the first accounting expert report ( see paragraph CARDINAL above ) .

In any event , the search had not been necessary , as she would have surrendered all required items and documents if she had been asked to .

The complaint was allocated to a single judge for determination , Judge ORG , who on DATE asked to recuse herself from the case , as it had been she who had examined and approved the application for a search warrant on DATE ( see paragraph CARDINAL above ) .

That request was dismissed by the President of ORG on DATE . It was noted that the first applicant had expressly confirmed that she was not challenging the search measure itself , but the manner in which it had been carried out . In such circumstances , there was no reason for Judge PERSON to withdraw from the case .

In the context of the second set of proceedings , on DATE the first applicant lodged an application calling into question the constitutionality of the provisions of LAW ( see paragraph CARDINAL below ) . She claimed that the impugned provisions breached a claimant ’s defence rights , right to a fair trial and right to an effective remedy , as he or she was denied the right to participate in proceedings and contest a search measure .

The application was dealt with by ORG ( “ the LAW ” ) , which gave its judgment on DATE , dismissing the objection as ill - founded . ORG TIME found that the constitutionality of the impugned provisions had already been examined and found to be in accordance with the LAW ( the court referred to its decision of DATE , detailed in paragraph CARDINAL below ) . The court reiterated that only the legislature could dictate the jurisdiction of the domestic courts and trial procedure .

Furthermore , ORG held that the issuing of a search warrant was a procedural measure and not a trial in itself , and that therefore the summoning of parties was not obligatory , especially as a search was conducted in the presence of the interested parties and/or their representative . Moreover , interested parties had at their disposal several opportunities and means to contest any measure taken during a criminal investigation or criminal trial .

The case was sent back to ORG , which gave its judgment on DATE , dismissing the first applicant ’s complaint . The court noted that a similar claim lodged by the first applicant in another set of proceedings had already been dismissed by a final judgment ( see paragraph CARDINAL above ) .

The court further stated that the search had been carried out in compliance with the domestic legal provisions and in the presence of the prosecutor , the applicant and her lawyer , and no objections had been raised at the material time .

It appears that the decision was not appealed against by the first applicant .

In DATE the second applicant was struck off the list of ORG ; the first applicant was removed from the list from DATE until DATE , allegedly as a result of the criminal investigations against her .

The first applicant was indicted on DATE , charged with perjury as a witness in a criminal trial , aiding and abetting a perpetrator ( with specific reference to the criminal trial concerning ORG and GPE ) , and spoliation ( the material alteration , thereby invalidation ) of evidence .

The indictment referred to the items seized during the search of DATE , namely documents relating to the forensic accounting reports issued by the first applicant and relevant to several criminal proceedings against various suspects ( GPE , GPE , GPE , ORG ) ; the prosecutor considered that such documents had been withheld by the first applicant for the purpose of obstructing justice .

The indictment stated that the criminal proceedings against the CARDINAL other accounting experts ( see paragraph CARDINAL above ) were to be terminated ( scoatere de sub urmărire penală ) .

By a judgment of CARDINAL DATE ORG acquitted the first applicant of all charges .

In relation to the charge of perjury , the court held that such a charge was relevant where an expert had been called before a court to give oral evidence , which had not been the case with regard to the first applicant . In relation to the written evidence given by the first applicant in the form of the forensic accounting report , the court held that the report was a collective piece of work produced by the CARDINAL experts appointed in the case . Even if evidence had been adduced proving that CARDINAL of the experts had personally studied the file in the court ’s archives , it could not be inferred that the work had been done by the first applicant exclusively and in the absence of consideration of all the relevant documents and consultation with the other experts .

The court further stated that there was insufficient proof that the first applicant had favoured ORG The accounting expert report had been produced with the other experts appointed in the case . The first applicant had been selected as an expert in the impugned criminal proceedings from a list of CARDINAL experts , and it had therefore been impossible for her to plan to help ORG in any way .

With reference to the documents found at the first applicant ’s residence during the search carried out on DATE , the court stated that they had not been in her possession unlawfully , as all of them had been given to her by the police for the purpose of allowing her to produce the relevant forensic accounting reports . It could therefore not be inferred that the applicant had withheld the documents with the intention of obstructing justice . The court ordered that all IT equipment seized from the first applicant should be returned to her once the judgment became final .

By a judgment of DATE ORG dismissed an appeal lodged by the prosecutor and upheld the first - instance court ’s judgment , stating essentially that the presumption of innocence in respect of the first applicant had not been rebutted . The only dissenting opinion of ORG considered that the case should have been remitted to the first - instance court for a re - trial , as the first - instance judgment had lacked appropriate reasoning .

The first applicant filed several criminal complaints against the relevant prosecutors and police officers who had requested and carried out the search of CARDINAL DATE with various domestic authorities ( ORG , ORG of the ORG and ORG ) , accusing them of abuse of office for carrying out the search in breach of ORG CARDINAL - CARDINAL of the RCCP ( see paragraph CARDINAL below ) . She reiterated her arguments : a special warrant and a separate report had been needed for the body search ( Article CARDINAL ) , and another warrant had been necessary for the search of the company ’s registered office ( Article CARDINAL ) .

Those complaints were joined and assessed in a unique case file , being dismissed as ill - founded by ORG on DATE . The court upheld the prosecutor ’s decision . In respect of the complaint concerning the body search , it found that the search of the applicant ’s bag had been carried out inside her house , as a preliminary step of the actual search measure . Furthermore , the home search warrant had been issued in respect of an address , not in respect of a person or company . The court concluded that all the complaints were ill - founded .

That decision was upheld by ORG and ORG on DATE .

The first applicant also submitted to the ORG a copy of another undated criminal complaint , which was addressed to the prosecutor ’s office attached to ORG and ORG . In the complaint , the first applicant claimed that the search report had been forged with regard to the manner in which the computer had been sealed ( see paragraphs CARDINAL above ) . She also stated that , at some point after the search , she had noticed that the data on her computer relating to various forensic accounting reports which she had produced had been altered while at the police headquarters , so as to provide evidence to incriminate her .

In the absence of any registration number or reference to a domestic file number , it is unclear if and when that complaint was lodged with the domestic authorities ; assuming that it was , it is equally unclear whether the first applicant received any response .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in DATE and lives in PERSON .

On DATE ORG in PERSON ( “ the ORG ” ) issued a warrant to search the applicant ’s flat for a mobile telephone , which had been reported stolen . The relevant part of the ruling read :

“ Acting investigator has applied to the court with a request to authorize search of the dwelling of [ the applicant ] ... with a view to locating a mobile telephone “ NokiaCARDINAL ” stolen from private entrepreneur [ K. ] ... [ theft ] having taken place on DATE at night .

During the hearing , the acting investigator and the prosecutor have supported their request ...

Having heard the acting investigator [ and ] the opinion of the prosecutor , and having examined the material of the criminal case , the court concludes that ... [ it ] has been provided with sufficient data indicating a possibility that the ORG mobile telephone may be at the [ applicant ’s ] place of residence . ”

On DATE the police searched the applicant ’s flat in his presence and seized CARDINAL mobile telephones , which , according to the applicant , belonged to him and his family members . As appears from a poorly legible copy of the list of the seized items prepared by the police , CARDINAL of these telephones were apparently of ORG and DATE of ORG make . According to the applicant , on an unspecified date the seized telephones were returned , and neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant .

On DATE the applicant lodged an administrative complaint with ORG , alleging that his home had been searched arbitrarily and seeking moral damages for breaching inviolability of his home .

On DATE ORG refused to examine the above complaint , citing a lack of jurisdiction . It noted that all complaints regarding the unlawfulness of procedural actions by law - enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of relevant criminal proceedings based on Articles CARDINAL and CARDINAL of LAW of GPE ( “ the ORG ” ) , then in force .

The applicant appealed against that decision . He alleged that there was no meaningful opportunity for him to obtain redress on the basis of the ORG provisions , since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case . In the applicant ’s situation , such a remedy would not be effective , since he had no procedural status in the criminal proceedings at issue , and had never been informed of the progress of those proceedings . Moreover , it was not certain whether or when the case would reach trial stage . However , as the applicant considered himself to have been a victim of an arbitrary search , regardless of the outcome of the relevant criminal investigation , he also considered that he had standing to bring an administrative complaint under Articles CARDINAL and CARDINAL of the Code of Administrative Justice of GPE ( “ the ORG ” ) .

On DATE ORG rejected the appeal by the applicant , having essentially endorsed the findings of the first - instance court .

NORP The applicant appealed in cassation . He reiterated the arguments raised in his ordinary appeal and additionally submitted that his claim against the police for non - pecuniary damages could not be examined and resolved within the framework of criminal proceedings against a third party .

On CARDINAL DATE ORG of GPE rejected the applicant ’s cassation appeal .