Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE .

He was a partner in a commercial partnership , a banking and stockbroking firm called PERSON I / S ( hereafter “ the Partnership ” ) . In addition to the applicant , the Partnership had CARDINAL other partners : VL , ORG , ORG , and CARDINAL private limited companies , namely Hugo PERSON A / S and PERSON A / S. Subsequently , in legal proceedings it was established that a further partner , ORG , had not formally resigned from the Partnership and therefore was also to be considered a partner .

On DATE , due to financial difficulties , proceedings were initiated before ORG ( ORG under Sø- og ORG ) concerning the Partnership and the partners for suspension of payments .

On DATE , ORG decided to discontinue the suspension of payments . At the same time , having heard CARDINAL bankruptcy petitions against the applicant , who did not object to the claim that the bankruptcy conditions had been met , ORG commenced bankruptcy proceedings against his estate . A trustee in bankruptcy was appointed to sort out the estate and to settle the accounts and the applicant was divested of the right to administer or to deal with his assets .

ORG formally commenced the examination of claims on CARDINAL DATE , but found that it was appropriate to wait until the claims against the Partnership had been lodged and examined .

On DATE , bankruptcy proceedings commenced against the Partnership and by DATE bankruptcy notices regarding all the copartners had been issued as well . The ORG ’s assets , including the individual ORG assets , were estimated at MONEY ( ORG ) , while its liabilities were estimated at ORG CARDINAL . The Partnership estate was closed on DATE with distribution of dividends .

NORP In the meantime , as regards the applicant ’s bankruptcy estate , in the period DATE various court sessions were held with a view to determining the applicant ’s assets and considering creditor claims .

In DATE a new trustee was appointed . Court hearings were held in DATE and DATE .

NORP Moreover , the trustee held several meetings with the applicant and the partners in DATE and DATE .

During DATE and DATE it appears that no court hearings as such were held . Nevertheless ORG and the trustee regularly examined claims in this period .

In a report of CARDINAL DATE , the ORG stated , inter alia , that the applicant ’s estate could not be dealt with until the closure of the Partnership estate .

Court sessions were held on DATE , DATE and DATE , CARDINAL DATE and CARDINAL DATE . On DATE , ORG adjourned the proceedings pending the preparation of accounts .

In a report of CARDINAL DATE , the ORG stated that full coverage for the Partnership creditors was expected in connection with the closing of the ORG estates . He was therefore endeavouring to obtain a compulsory composition so that the bankruptcy proceedings could be finalised pursuant to section CARDINAL of LAW . The accounts of the applicant ’s bankruptcy estate could not be prepared , however , until formal accounts were available in the estates of the co - partners PERSON , CHN and FVM . At the relevant time , those accounts were being prepared , but could not be completed until , inter alia , the outcome of proceedings initiated by ORG against PERSON ORG in bankruptcy was known . The latter proceedings were finalised in DATE .

On DATE , the trustee informed ORG that the draft accounts and report had been prepared and sent to the applicant for his comments . On DATE the trustee reminded the applicant that his comments were awaited .

On DATE , a hearing was held at ORG during which a representative for the applicant stated that before the accounts could be approved , the applicant needed to examine certain matters in detail . Accordingly , ORG decided to postpone the approval of the accounts . Moreover , it appointed a lawyer as counsel for the applicant to help him with the matters raised .

NORP In a letter of DATE to the creditors , the ORG stated that the approval could not be given pending the review of various matters by the applicant ’s counsel and clarification of the applicant ’s tax affairs .

By DATE the bankruptcy proceedings against the other partners of the Partnership were terminated .

On DATE having received several reminders , the applicant ’s counsel replied as to the matters that needed to be examined and he recommended that resources be applied to seek a settlement with both the creditors of the bankruptcy estate and the tax authorities .

NORP By letter of CARDINAL DATE , the ORG requested that ORG schedule another meeting of creditors to close the estate . He referred to the fact that no objections had been filed against the accounts and that the applicant ’s dispute with the tax authorities did not affect the assets available for distribution .

On DATE , ORG declared that the estate would be closed .

At a hearing on CARDINAL DATE , ORG approved the accounts of the applicant ’s bankruptcy estate . Thereafter , the proceedings were adjourned pending the preparation of draft distribution accounts to be presented at a meeting of creditors on DATE . On DATE , due to lack of agreement between the ORG and ORG , the proceedings were adjourned . Another hearing was held on DATE .

In accordance with the draft distribution accounts , preferential claims would be fully covered . Moreover , an amount of approximately ORG CARDINAL remained for distribution to so - called section CARDINAL claims ( section CARDINAL of LAW , which included deferred claims for interest ) .

On DATE , a distribution on account was made in respect of the ordinary claims . During the period between DATE and DATE an amount of DKK MONEY was made available to the applicant .

Before the final deadline for notifying claims in the estate , which ORG fixed at DATE , CARDINAL Partnership creditors lodged claims for interest in the estate . The applicant ’s counsel negotiated with the creditors with a view to reaching a settlement on the claims for interest , but in vain .

Thus , on CARDINAL DATE and CARDINAL DATE hearings were held at ORG . On the latter date the deferred claims for interest were examined . The creditors , who appeared before the court , objected to the trustee ’s recommendation concerning the calculation of the claims for interest , and the parties therefore concluded a litigation agreement on the filing of a pleading to ORG by DATE at the latest .

In addition , the applicant objected to the trustee ’s recommendation concerning certain claims . He and the ORG therefore concluded a litigation agreement to select CARDINAL or more suitable lead cases .

The examination of the other claims , which were not objected to by the creditors , but contested by the applicant , was adjourned pending the outcome of the lead cases . CARDINAL creditors then issued a writ against the bankruptcy estate , and the applicant intervened as a third party .

On DATE , ORG passed judgment in the CARDINAL lead cases , and at a meeting of creditors on CARDINAL DATE the creditors declared that they did not wish to appeal against the judgments unless the applicant did so . The applicant subsequently appealed against the judgments to the High Court of Eastern GPE ( PERSON ) , hereafter the High ORG .

On DATE , ORG invited the applicant and the creditors to consider whether the estate could be closed under section CARDINAL of LAW by setting aside funds to cover the contested claims pursuant to section CARDINAL . According to the former provision , the estate could be finalised and the surplus assets handed over to the debtor if the creditors had obtained full payment . The latter provision , however , provided for the possibility of finalising the estate even though there were disputed claims , if an amount equal to those claims had been set aside . At the relevant time it was not legally possible to combine section CARDINAL and section CARDINAL , unless the parties agreed to do so .

On DATE , at a hearing at ORG , the trustee recommended that final distribution accounts be prepared in respect of the deferred claims comprised by section CARDINAL of LAW , which were not the subject of the pending appeal proceedings . In respect of the disputed claims , the distribution could be postponed until after the closing of the estate , as provided for by section CARDINAL of LAW . ORG approved this recommendation and scheduled a meeting of creditors .

At the scheduled meeting of creditors , which took place on DATE , the applicant objected to ORG closing the estate . In support thereof he argued that “ the length of the proceedings had been unreasonable [ anyway ] and that therefore the closing of the estate ought to await [ also ] the outcome of the appeal proceedings before the High ORG ” . Despite the applicant ’s objection , ORG decided to approve the accounts and to make contributions in respect of the claims , which were not the subject of the pending appeal proceedings . It was also decided to make an amount of DKK CARDINAL,CARDINAL available to the applicant pursuant to section CARDINAL of LAW , then applicable . Finally , the estate was finalised by setting aside the remaining funds to cover the disputed claims .

The applicant appealed against the finalisation of the estate in accordance with section CARDINAL to ORG , which found against him on DATE . It appears that the applicant failed to request leave to appeal against this decision to ORG ( Højesteret ) .

On DATE , in the appeal proceedings concerning the disputed deferred claims for interest , ORG passed judgment against the applicant .

On DATE ORG held a meeting of creditors to produce additional distribution accounts concerning the disputed deferred claims for interest . However , since the applicant had requested that ORG ( Procesbevillingsnævnet ) grant him leave to appeal to ORG , ORG adjourned the proceedings .

On DATE , ORG informed the parties that the applicant would be granted leave to appeal against the judgment to ORG .

On DATE , ORG passed judgment finding against the applicant .

On DATE , concluding that all creditors had been satisfied , ORG closed the estate and approved the handing over of the remaining assets of the estate , minus the costs of administration of the estate , to the applicant pursuant to section CARDINAL of ORG .

Before the ORG the applicant submitted that on numerous occasions , in vain , he had requested that the bankruptcy proceedings be expedited . This was disputed by the Government .

By letter of CARDINAL DATE ORG ( PERSON ) invited the applicant to raise his complaints about the length of the bankruptcy proceedings before the court , where the case was pending .

LAW ( GPE ) , LAW no . CARDINAL of DATE , which comprised the rules relevant to the administration of the applicant ’s bankruptcy estate , stated in as far as relevant :

Upon the pronouncement of the bankruptcy order , the debtor is deprived of his right to assign or to abandon his property , to accept payments and other services rendered , to accept terminations , complaints and similar declarations , to incur debts or to deal in any other way with his property with any effect as regards the estate .

( CARDINAL ) Where the debtor is unable to provide for his own and his family ’s needs by his own work , the estate may award maintenance to the debtor or to his dependents .

( CARDINAL ) The estate may grant the debtor a right of use to real property or chattels .

( CARDINAL ) Where specific grounds so justify , ORG may reject the election of a trustee or remove him later . ...

Where the trustee or meeting of creditors acts to the detriment of the estate , or where rights vested in mortgagees , the debtor or other parties are infringed upon , ORG may set aside the decisions made , give directions to the trustee , and take any other requisite steps .

( CARDINAL ) Where the debtor obtains a compulsory composition , cf . section CARDINAL , and where the creditors of the bankruptcy estate who , under section CARDINAL ) , are not comprised by the composition have been satisfied or adequately secured , or where the debtor , after the expiry of the period allowed for proof of claims , produces a consent from all creditors or proof of their having been satisfied , the bankruptcy proceedings must be finalised promptly , and the assets of the estate must be handed over to the debtor , subject to deduction of any costs inclined in connection with the bankruptcy proceedings .

( CARDINAL ) Where the debtor , after the bankruptcy proceedings have been completed , substantiates that the creditors have been satisfied or have waived their claims , the ORG shall issue a certificate to such effect to him .

On the basis of a recommendation from the ORG , the bankruptcy court may decide that the preparation of the final accounts , and distribution , if any , of an amount not yet collected , of any amount set aside pursuant to section GPE ) , or of any other specifically limited parts of the estate , will be deferred to the period after finalisation of the bankruptcy proceedings .

Section CARDINAL ) of LAW no . CARDINAL of DATE ) , now in force , reads as follows :

The debtor or a creditor may demand that ORG make use of its authorities set out in section CARDINAL , subsection CARDINAL , and that it fix a hearing pursuant to section CARDINAL or CARDINAL [ with a view to finalising the estate ] , if such proves necessary due to the requirement in DATE LAW concerning a fair trial within a reasonable time .

A partnership is an association formed by several natural or legal persons for the purpose of promoting the ORG ( ORG ) financial interests through business activities .

A partnership is a form of business enterprise in which all members are liable personally , without limitation and jointly and severally for the obligations of the enterprise ( see section CARDINAL(CARDINAL ) of Consolidation Act no . CARDINAL of DATE on certain business enterprises ) . This implies that the members are liable with their entire personal property , that the individual member is liable for the entire debt , and that the creditors of the partnership have a direct claim against the individual member without first having to raise a claim against the partnership .

The partnership and its members are liable to the creditors of the partnership . Under applicable NORP law , it is therefore a prerequisite for administration of the bankruptcy estate of a partnership that all partners are subject to bankruptcy proceedings . A co - partner ’s bankruptcy estate is thus of importance to the closing of the other co - partners’ bankruptcy estates . By contrast , the partnership is not liable to the ORG personal creditors . Hence , personal creditors can not seek satisfaction from partnership assets , but only in the surplus distributed to the partners .

There are few rules of law regulating partnerships . In the absence of a rule of law regulating the matter , the legal position depends on an interpretation of the partnership agreement and on what may be inferred from non - mandatory rules .

If a member of a partnership is declared bankrupt , section CARDINAL of the LAW applies . This provision enables the estate to release the relevant partner ’s share of the net assets of the partnership with a suitable notice so that all his assets are applied to satisfy his creditors .


The applicant is a NORP national , born in DATE and currently serving his prison sentence in FAC in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE N. was charged before ORG ( käräjäoikeus , tingsrätt ) with aggravated narcotics offences concerning QUANTITY of cannabis ( case R CARDINAL ) . He had stated to the police that he had committed several aggravated narcotics offences in DATE and incriminated several other people , including the present applicant , during the police investigations . The case was adjourned until CARDINAL DATE as the police investigations had not finished .

N. ’s case was heard on CARDINAL and DATE . ORG confessed to the court that he had dealt in QUANTITY of cannabis . The case was adjourned until DATE as the police investigations continued .

On DATE the present applicant , PERSON , was taken into police custody as he was suspected of an aggravated narcotics offence on the basis of the information revealed by ORG to the police . The applicant was brought before the GPE ORG DATE , i.e. on DATE . The court ordered his detention on remand until the first hearing of his case ( case R CARDINAL/CARDINAL ) on DATE .

On DATE N. was charged with additional aggravated narcotics offences which he confessed to . The case ( case R CARDINAL/CARDINAL ) was again adjourned until DATE .

There was a hearing in the present applicant ’s case ( case R CARDINAL/CARDINAL ) before the Helsinki ORG on DATE , in which the applicant was charged with an aggravated narcotics offence and illegal possession of a firearm . The applicant was suspected of having had in his possession QUANTITY of cannabis with intention to deal therein in DATE and a firearm . The applicant confessed to the illegal possession of a firearm and denied the narcotics offence . The case was adjourned until DATE .

On DATE before the ORG N. repeated all his statements to the police and stated that he would stand by them . ORG ’s case ( case R CARDINAL/CARDINAL ) was joined with another case ( R CARDINAL/CARDINAL ) .

The applicant ’s case ( R CARDINAL/CARDINAL ) was heard on DATE separately from ORG ’s case . The applicant ’s case was adjourned until DATE as the police investigations had not finished .

On DATE the applicant ’s case was again heard separately from ORG ’s case . The applicant was additionally charged with several aggravated narcotics offences . He was suspected of having possessed QUANTITY of cannabis in DATE , QUANTITY of cannabis in DATE , DATE and QUANTITY of cannabis in DATE , QUANTITY of cannabis in DATE , QUANTITY of cannabis DATE and QUANTITY of cannabis in DATE . The applicant denied all the additional charges . The case was adjourned until DATE .

On DATE there was also a hearing in case R CARDINAL/CARDINAL ( the case number used after the joinder of ORG ’s case with another case ) against ORG and now CARDINAL other accused , concerning several aggravated narcotics offences . Several charges were brought against ORG and other co - accused . The case was adjourned until DATE .

On DATE the applicant ’s case ( R CARDINAL/CARDINAL ) was again heard separately from ORG ’s case . The applicant denied all the charges and stated that they were all based solely on ORG ’s statements made in the course of a police investigation and a hearing at which the applicant was not represented and that there was no other evidence against him . He requested to be released as he had not been given an opportunity to question PERSON also submitted that ORG had changed his statements to the police so that these could not be found credible . The public prosecutor objected to the applicant ’s request , stating that the applicant would , if released , interfere with the investigations which had not yet finished . The case was adjourned until DATE .

By this time there was also a hearing in case R CARDINAL/CARDINAL against ORG and CARDINAL other accused ( not including the applicant ) . PERSON stated to ORG that he would not repeat his previous statements and retracted them . The case was also adjourned until DATE .

On DATE the applicant ’s case ( R CARDINAL/CARDINAL ) was joined with yet another case ( R CARDINAL/CARDINAL ) in which there were CARDINAL other accused concerning the same drug trafficking offences ( including PERSON to whom the applicant had allegedly given the drugs ) . The public prosecutor stated that the investigations were still unfinished and requested that the case should be adjourned . The applicant stated that he would respond to the charges in detail as soon as ORG can be questioned . PERSON denied that the applicant had had anything to do with the narcotics . The case was adjourned until DATE .

On DATE there was also a hearing in case R CARDINAL/CARDINAL against ORG and several other accused . The case was adjourned until DATE .

On DATE there was a hearing in the applicant ’s case ( now R CARDINAL/CARDINAL after the joinder of the applicant ’s case with PERSON ’s case ) . The applicant requested to be released as there was nothing left to “ interfere with ” in the investigations and as he had still not been given a chance to put questions to NORP case was adjourned until DATE .

By this time there was also a hearing in case R CARDINAL/CARDINAL against ORG and others . The case was adjourned until DATE .

On DATE there was a hearing in both cases ( R CARDINAL/CARDINAL and R CARDINAL/CARDINAL ) which were now joined . There was a total of CARDINAL accused including the applicant , N. and H. The public prosecutor asked ORG whether the applicant had been with PERSON collecting the drugs from PERSON answered “ no ” . ORG also stated that at his stage he did not want to repeat everything he had said about PERSON , the applicant and CARDINAL other accused . The public prosecutor withdrew a part of the charges ( concerning QUANTITY of cannabis at DATE ) against the applicant but stated that the applicant had dealt in QUANTITY of cannabis on DATE . The applicant ’s legal counsel asked CARDINAL questions about the latter ’s health . After this questioning the counsel stated that ORG was ill and could not properly concentrate on the questions put to him during this hearing . She also submitted that there were several discrepancies between ORG ’s various statements and that ORG ’s statements did not support the charges against the applicant . The case was adjourned until DATE .

On DATE there was another hearing in case R CARDINAL/CARDINAL before ORG . The public prosecutor submitted several police investigation reports to the court . The case was adjourned until DATE .

On DATE the case was heard again . The public prosecutor submitted new police investigation reports to the court . ORG refused to comment on any of his statements and stated that he would remain silent . He also stated that he would not answer any questions put to him as he “ wanted to reserve an opportunity for all the innocent co - accused to tell the truth ” . The applicant ’s legal counsel stated that she had prepared questions for ORG but could not put them to him at the moment as ORG had said that he would not answer any questions . The case was adjourned until DATE . The applicant was ordered to be released from detention .

At ORG hearing on DATE N. again refused to repeat his statements concerning the applicant , PERSON and CARDINAL others as he could not “ take the responsibility if innocent men were convicted on the basis of his statements ” . The applicant ’s legal counsel put a question to ORG ( the question and any answer to it is not on the file ) . The case was adjourned until DATE .

On DATE the case was heard again . The applicant submitted that the only evidence against him was the earlier statements of ORG and that ORG had withdrawn them . ORG was convicted of CARDINAL aggravated narcotics offences and CARDINAL counts of possession of an illegal firearm and sentenced to DATE and CARDINAL months’ imprisonment . CARDINAL other accused were convicted of different narcotics offences and sentenced to imprisonment . The rest of the case was adjourned until DATE , including the applicant ’s case .

On DATE the case was heard again . The public prosecutor submitted a report , dated DATE , to the court concerning telecommunications between the accused . The report had been served on the applicant ’s legal counsel the previous afternoon . The public prosecutor submitted a complete list of the telephone calls , with details of their duration and dates , but the legal counsel was provided only with a list concerning the number of the phone calls . The applicant ’s counsel commented telecommunications between the accused , without requesting a further adjournment on the basis of the new report . The counsel gave her closing speech in which the fact that the report concerning telecommunications had been submitted to the counsel only on DATE was not raised . ORG convicted the applicant of CARDINAL aggravated narcotics offences and illegal possession of a firearm and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant was detained on remand . The reasoning of the court reads as follows :

( translation from NORP )

“ [ The applicant ] has denied all the charges except for charge number CARDINAL [ concerning illegal possession of a firearm ] . ...

The conviction is based on ORG ’s statements . ORG has stated above why it has found ORG ’s statements credible . ORG told about the applicant ’s participation at a fairly early stage of the investigations and in a fairly detailed manner . ORG revealed that [ the applicant ] had assisted PERSON when PERSON collected the cannabis from PERSON identified the suitcase confiscated from [ the applicant ] as similar to the suitcase used by [ the applicant ] when collecting the cannabis from him . PERSON stated that [ the applicant ] had taken care of certain things for him . ORG ’s statement concerning the close co - operation between H. and [ the applicant ] is also supported by the fact that [ the applicant ] has lived with his girlfriend in a flat rented by ORG from GPE . Also PERSON has testified that [ the applicant ] had helped PERSON with all kinds of things . [ The applicant ] has , inter alia , witnessed PERSON ’s signature to a deed concerning PERSON ’s flat in ORG . CARDINAL of the witnesses , PERSON , has testified that [ the applicant ] had been “ hanging around ” a garage owned by ORG [ The applicant ] had been there fairly often either alone or with PERSON [ The applicant ’s ] girlfriend has had a car put to her disposal by PERSON [ The applicant ] has stated that a mobil phone line was opened in his name in DATE . The mobile phone was , however , in the use of H. and was also left with H. This has also been certified by PERSON

CARDINAL NORP Marks ( ORG ) was confiscated from [ the applicant ] when he was arrested . FIM CARDINAL of the above - mentioned money was hidden in the body of a car . Considering that [ the applicant ] has testified that he has been unemployed for quite some time now it is not credible that the money was earned by him as a locksmith .

ORG has had much more telephone connections with [ the applicant ] than any other accused in this case . In addition to that [ the applicant ] has been in close contact with the rest of the accused .

It must be found that [ the applicant ] has received at least FIM CARDINAL,CARDINAL as the illegal profit of his actions . ”

On DATE the applicant appealed to ORG ( hovioikeus , hovrätt ) , requesting an oral hearing before ORG . He stated that he should not have been found guilty on the basis of ORG ’s statements as there was no other evidence against him and as ORG had withdrawn his statements as far as the applicant was concerned . The applicant and ORG did not appear before the court at the same hearing until DATE . At that hearing ORG did not repeat his statements concerning the allegations against the applicant . The additional investigations did not finish until DATE , when PERSON declared that he would remain silent from then onwards . N. did not repeat his statements at the later stages of the proceedings and , thus , no questions were put to ORG either by the applicant ’s counsel or by the public prosecutor . According to the applicant , ORG ’s statements could not be regarded as credible and therefore , there was no evidence at all against him . He also pointed out that the report concerning telecommunications between the accused was finished on DATE and submitted to the court and to the accused ’s legal counsel on DATE , i.e. on DATE of the conviction .

On DATE ORG upheld ORG judgment without holding an oral hearing . On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal . ORG


Violation of Art. 8;No separate issue under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

Mr Niemietz lives in GPE i m GPE , GPE , where he practises as a lawyer ( PERSON ) .

On DATE a letter was sent by telefax from the GPE post office to Judge PERSON of ORG ( ORG ) . It related to criminal proceedings for insulting behaviour ( PERSON ) pending before that court against PERSON , an employer who refused to deduct from his GPE salaries and pay over to the tax office the ORG tax to which they were liable . The letter bore the signature of CARDINAL PERSON possibly a fictitious person - , followed by the words " on behalf of the Anti - clerical ORG ( PERSON ) of ORG ( multi - coloured group ) " and a post - office box number . It read as follows :

" On CARDINAL the trial against Mr [ J. ] will take place before you . We , the Anti - clerical ORG of ORG , protest most strongly about these proceedings .

In the ORG , the ORG , on the basis of the PERSON concordat and in violation of the ORG ’s duty to maintain neutrality , enjoys most extensive privileges . As a result , every non - NORP citizen of this ORG has to suffer disadvantages and DATE annoyance . Among other things , the ORG is the only ORG which acts as ORG - tax collector . It requires employers , whether they be NORP or not , to pay over ORG tax for their NORP employees and thus relieve the ORG of financial administrative work . [ J. ] has , for DATE , courageously and consistently refused to support the financing of the ORG in this way and has made an appropriate arrangement whereby the ORG tax of his NORP employees is paid without his own involvement .

This attempt - in a ORG which counts the separation of ORG and ORG among its basic principles - to insist upon just such a separation has not only exposed [ J. ] to persistent vexation and interferences on the part of ORG authorities , culminating in the tax office employing coercive measures , such as attachment , to collect from him ORG tax which his employees had already paid a long time previously . It has in addition involved him - when he called these underhand methods by their name - in the present proceedings for alleged insulting behaviour .

Were it your task as the competent judge to conduct an unbiased examination of this ‘ case of insulting ORG , then it must be said that you have not only failed to carry out this task , but also abused your office in order to try - by means which give a warning and a reminder of the darkest chapters of NORP legal history - to break the backbone of an unloved opponent of the ORG . It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions , and to which [ J. ] has had to submit in the meantime . We shall use every avenue open to us , in particular our international contacts , to bring to public notice this action of yours , which is incompatible with the principles of a democratic ORG subscribing to the rule of law .

We shall follow the further course of the proceedings against [ J. ] and expect you to abandon the path of terrorisation which you have embarked upon , and to reach the only decision appropriate in this case - an acquittal . "

The applicant had , as a city councillor , been chairman for DATE of ORG , which is a local political party . He had also played a particularly committed role in , although he had never been a member of , its Anti - clerical ORG , which sought to curtail the influence of the ORG .

Until DATE certain of the mail for the ORG , which had as its address for correspondence only the post - office box number that had been given in the letter to Judge PERSON , had been delivered to the office ( Bürogemeinschaft ) of the applicant and a colleague of his ; the latter had also been active on behalf of the party and had acted for it professionally .

On DATE the Director of the Munich ORG ( Landgericht ) requested the GPE public prosecutor ’s office ( ORG ) to institute criminal proceedings against PERSON for the offence of insulting behaviour , contrary to LAW . Attempts to serve a summons on him were unsuccessful . The applicant ’s colleague refused to give any information about PERSON or his whereabouts and other attempts to identify him failed .

In the context of the above - mentioned proceedings ORG issued , on DATE , a warrant to search the law office of the applicant and his colleague and the homes of PERSON and PERSON The warrant read as follows :

" Preliminary investigations against PERSON concerning LAW

Decision

The search of the following residential and business LOC for documents which reveal the identity of ‘ PERSON [ sic ] and the seizure of such documents is ordered .

Office premises shared by the lawyers ORG and ... ,

Home ( including adjoining rooms and cars ) of Ms [ NORP ] ... ,

Home ( including adjoining rooms and cars ) of Ms [ G. ]

Reasons

On DATE a letter insulting Judge PERSON of ORG was sent by telefax from the GPE post office . It was sent by the LAW - clerical ORG of ORG . The letter was signed by CARDINAL PERSON .

Until now it has not been possible to identify the signatory . ORG could not be contacted by mail otherwise than through a box number . Until DATE such mail was forwarded to the office of Niemietz and ... , and since DATE to Ms [ NORP ] . It has therefore to be assumed that documents throwing light on the identity of PERSON can be found at the premises of the above - mentioned persons .

Furthermore , it is to be assumed that there are such documents in the home of Ms [ G. ] , the Chairwoman of ORG .

For these reasons , it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision . "

The search of the law office , the need for which the investigating authorities had first tried to obviate by questioning a witness , was effected by representatives of the GPE public prosecutor ’s office and the police on CARDINAL DATE . According to a police officer ’s report drawn up on DATE , the premises were entered at TIME and inspected in the presence of CARDINAL office assistants . The actual search began at TIME , when the applicant ’s colleague arrived , and lasted until TIME The applicant himself arrived at TIME He declined to give any information as to the identity of PERSON , on the ground that he might thereby expose himself to the risk of criminal prosecution .

Those conducting the search examined CARDINAL filing cabinets with data concerning clients , CARDINAL files marked respectively " BL " , " C.W. -Freiburg ORG ... " and " G. - Hamburg Regional Court " and CARDINAL defence files marked respectively " K.W. - Karlsruhe District Court ... " , " Niemietz et al . - ORG ... " and " NORP - Freiburg District Court " . According to the applicant , the office ’s client index was also looked at and CARDINAL of the files in question was its " PERSON defence file " . Those searching neither found the documents they were seeking nor seized any materials . In the proceedings before the ORG , the applicant stated that he had been able to put aside in time documents pointing to the identity of PERSON and had subsequently destroyed them .

The homes of PERSON and PERSON were also searched ; documents were found that gave rise to a suspicion that the letter to Judge PERSON had been sent by PERSON under an assumed name .

On DATE the Chairman of ORG , who had been informed about the search by the applicant ’s colleague , addressed a formal protest to the President of ORG . The Chairman sent copies to the NORP Minister of ORG and ORG and invited the latter to associate itself with the protest .

In a reply of DATE , the President of ORG stated that the search was proportionate because the letter in question constituted a serious interference with a pending case ; hence no legal action on the protest was necessary .

The criminal proceedings against " PERSON " were later discontinued for lack of evidence .

On DATE CARDINAL the GPE ORG declared an appeal ( Beschwerde ) lodged by the applicant , pursuant to LAW , against the search warrant to be inadmissible , on the ground that it had already been executed ( " wegen prozessualer PERSON " ) . It considered that in the circumstances there was no legal interest in having the warrant declared unlawful . It had not been arbitrary , since there had been concrete indications that specified material would be found . There was no ground for holding that LAW ( see paragraph CARDINAL below ) had been circumvented : the warrant had been based on the fact that mail for ORG had for some time been delivered to the applicant ’s office and it could not be assumed that that mail could concern a lawyer - client relationship . In addition , personal honour was not so minor a legal interest as to render the search disproportionate . There could be no question in the present case of preventing a lawyer from freely exercising his profession .

On DATE CARDINAL the applicant lodged a constitutional complaint ( ORG ) against the search warrant of CARDINAL DATE and ORG decision of CARDINAL DATE . On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) declined to accept the complaint for adjudication , on the ground that it did not offer sufficient prospects of success .

ORG also found that the GPE ORG decision of CARDINAL DATE that the applicant ’s appeal was inadmissible was not objectionable in terms of constitutional law . Furthermore , as regards the actual execution of the warrant , Mr Niemietz had not exhausted the remedy available to him under section PERSON ) of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz ) .

The search complained of was ordered in the context of criminal proceedings for insulting behaviour , an offence punishable by imprisonment for a maximum , where no physical violence is involved , of DATE or a fine ( LAW ) .

Article CARDINAL para . CARDINAL of LAW ) guarantees the inviolability of the home ( GPE ) ; this provision has been consistently interpreted by the NORP courts in a wide sense , to include business LOC ( see , in particular , ORG judgment of CARDINAL DATE - PERSON , vol . CARDINAL , p. CARDINAL ) .

LAW provides that the home and other LOC ( GPE und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence , to investigate indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person , indications or objects is or are to be found on the LOC to be searched .

Search warrants may be challenged , as regards their lawfulness , in proceedings instituted under LAW and , as regards their manner of execution , in proceedings instituted under section PERSON ) of LAW to LAW .

In GPE a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters .

An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of DATE or a fine ( Article CARDINAL para . CARDINAL(CARDINAL ) of LAW ) . A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity ( Article CARDINAL para . CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) . The last - mentioned provisions , in conjunction with LAW , prohibit , with certain exceptions , the seizure of correspondence between lawyer and client .

In its judgment of CARDINAL DATE in Joined Cases CARDINAL/CARDINAL and CARDINAL ORG v. Commission [ DATE ] ORG ( " ECR " ) CARDINAL at CARDINAL , ORG of ORG stated as follows :

" Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home , it should be observed that , although the existence of such a right must be recognized in the ORG legal order as a principle common to the laws of LAW in regard to the private dwellings of natural persons , the same is not true in regard to undertakings , because there are not inconsiderable divergences between the legal systems of GPE in regard to the nature and degree of protection afforded to business LOC against intervention by the public authorities .

No other inference is to be drawn from DATE ) ( article DATE ) of LAW which provides that : ‘ Everyone has the right to respect for his private and family life , his home and his correspondence’ . The protective scope of that article is concerned with the development of man ’s personal freedom and may not therefore be extended to business LOC . Furthermore , it should be noted that there is no case - law of ORG on that subject .

None the less , in all the legal systems of the Member States , any intervention by the public authorities in the sphere of private activities of any person , whether natural or legal , must have a legal basis and be justified on the grounds laid down by law , and , consequently , those systems provide , albeit in different forms , protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law . In that regard , it should be pointed out that the ORG has held that it has the power to determine whether measures of investigation taken by the ORG under LAW are excessive ( judgment of DATE in Joined Cases CARDINAL to CARDINAL and DATE to CARDINAL GPE and ORG [ DATE ] ECR CARDINAL ) . "

This statement was affirmed in the same court ’s judgments of CARDINAL DATE in LAW ORG [ DATE ] ECR CARDINAL at CARDINAL and Joined Cases CARDINAL to CARDINAL/CARDINAL ORG Ibérica and ORG [ DATE ] ECR CARDINAL at CARDINAL .


The applicant was born in DATE and lives in GPE . On DATE he bought a house ( no . CARDINAL , plot no . CARDINAL ) in the NORP neighbourhood attached to LOC in GPE . According to the title deed records , he paid MONEY ( approximately MONEY at the time ) .

Following a major rockslide , on CARDINAL DATE ORG declared the NORP neighbourhood a natural disaster area . To identify those who had been affected by the natural disaster , a regulation was published in ORG on DATE . According to the terms of this regulation , the victims of the natural disaster were given an opportunity to apply to the authorities within a specified time - limit to claim re - housing . At that time , CARDINAL of the CARDINAL families that had been living in the disaster area applied to the administrative authorities and they were provided with new houses in the Esentepe neighbourhood . The houses of these families were subsequently demolished . The owner of house CARDINAL , plot no . CARDINAL , which was subsequently bought by the applicant in DATE , did not apply to the authorities to claim re - housing .

On DATE the owner of plot no . CARDINAL/CARDINAL at the time received an eviction order from the FAC Governor 's office .

On DATE , at the request of ORG , land registry records were amended to indicate that no construction was permitted in the NORP neighbourhood .

DATE several on - site inspections were conducted and many experts ' reports were prepared . All of these reports indicated that the neighbourhood was under an imminent danger of rockslide and prevention measures had to be taken by the owners of the houses and the municipality . It appears from the documents that no preventive measures were taken .

As stated above ( paragraph CARDINAL ) , on DATE the applicant bought the house ( no . CARDINAL ) situated on plot no . CARDINAL . The applicant never lived in this house , and it was vacant in DATE . According to the documents submitted by the Government , the house was in ruins and it had no historical or architectural value .

On DATE following a heavy rain , rocks fell on house no . CARDINAL . On DATE the authorities conducted an on - site inspection and prepared a report . The report concluded that QUANTITY houses located in the GPE neighbourhood , including the CARDINAL owned by the applicant , required demolition to prevent loss of life . As a result , at the request of ORG , the GPE Governor 's office ordered that the applicant 's house be demolished pursuant to LAW . CARDINAL regarding Natural Disasters . On DATE the house was demolished without prior notification to the applicant .

On DATE the applicant filed an action before ORG against the GPE Governor 's office . He requested compensation for the unlawful demolition of his house .

On DATE ORG dismissed the applicant 's case . The court explained its decision by pointing out that the applicant 's house had been situated in a neighbourhood that had been declared a natural disaster area by ORG on DATE following a major rockslide . The court further took note of the fact that on DATE the LOC Governor 's ORG had sent an eviction order to the previous owner of the applicant 's house . In the court 's opinion , as the title - deed records of the building stated that no construction was permitted in the NORP neighbourhood , the applicant should have been aware of this situation when he had bought the house . As a result , it concluded that by demolishing the vacant house , that had no historical or architectural value , and which posed an immediate threat to public safety , the administration had acted in accordance with the law . The court accordingly refused the applicant 's request for compensation .

The applicant appealed . On CARDINAL DATE ORG upheld the judgment of ORG , finding that the applicant 's grounds of appeal were unfounded . ORG held that FAC had delivered the demolition order because there was an urgent need to take action to prevent loss of life in the neighbourhood .

On DATE ORG dismissed the applicant 's request for rectification . This decision was served on the applicant on DATE .


Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicants were born in DATE , DATE and DATE , respectively , and live in GPE .

The first applicant was born prematurely on DATE at the Dr ORG in GPE .

On DATE he was diagnosed with an “ inguinal and umbilical hernia ” by doctors working in the same hospital .

On an unspecified date in DATE or DATE , the third applicant , who is the first applicant 's father , purchased a unit of red blood cells and a unit of plasma from ORG , hereinafter “ the FAC ” ) . A number of blood and plasma transfusions were carried out on DATE , DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL and DATE . The first applicant was discharged from the hospital on DATE .

Approximately DATE after the blood transfusion , the second and third applicants learned that the first applicant had been infected with the HIV virus which could develop into the more severe Acquired Immune Deficiency Syndrome ( AIDS ) .

According to the information given by the Government , on DATE a donor ( no . DATE , code MUALAB-CARDINAL ) donated blood to the FAC . Subsequent to screening and tests carried out on the donated blood ( serial no . DATE ) , HIV was found and the blood in question was destroyed . Following CARDINAL more tests , it became certain that donor no . CARDINAL had been infected with HIV . The authorities conducted an investigation with a view to determining whether donor no . DATE had donated blood previously . It appeared that the unit of plasma ( serial no . DATE ) used for the first applicant 's treatment had been given by donor no . DATE . The first applicant was admitted to ORG for treatment . The costs of treatment were paid by ORG and ORG .

On DATE the applicants filed a complaint with ORG office in GPE . They claimed that the FAC had provided contaminated blood and ORG had been negligent in conducting the requisite screening and testing in accordance with the relevant domestic legislation . They requested that criminal proceedings be initiated against the doctors and laboratory personnel involved in the transfusion process , as well as against the Director of ORG ( GPE PERSON ) and the Director of ORG .

On DATE ORG of ORG prepared a report in which it stated that the unit of plasma used for the first applicant 's treatment had been screened and tested for the HIV virus . However at that stage the HIV antibodies had not yet been produced in the unit of plasma donated by donor no . DATE . The report further noted that all around the world the HIV infection had been screened by Anti - HIV ( LAW ) tests on the recommendation of ORG . Therefore , it had been scientifically impossible to diagnose the HIV contained in the unit of plasma in question by the routine tests . Thus , relying on the statements given by health personnel and expert reports , the report concluded that there was no negligence attributable to the health personnel involved in the incident or to any other authority .

Notwithstanding , ORG advised that ( CARDINAL ) a circular be issued to relevant departments ; ( CARDINAL ) the health personnel be reminded to ensure that questionnaires were properly filled in by blood donors ; ( CARDINAL ) questions be asked about the sexual history of the donors and ( CARDINAL ) donations be refused in doubtful cases . ORG added that health personnel 's attention should be drawn to the need to wait for a sufficient period of time before delivering blood in case antibodies had not yet been produced . In this connection , on DATE circular no . CARDINAL and its attachments were communicated to all blood centres and stations in order to prevent infections resulting from blood transfusions .

On DATE ORG decided that no investigation could be conducted into the doctors who had been involved in the blood transfusion process on the ground that the children 's hospital where the transfusions had taken place was not equipped with facilities for the LAW test . Therefore the doctors had not been at fault in the incident .

On DATE the applicants filed a complaint with ORG office in GPE , this time against LOC and the Director General of the FAC .

On DATE ORG issued a decision of nonprosecution . He reasoned that an investigation into the actions of a minister could only be conducted in accordance with LAW , which requires a motion to be brought in parliament . Therefore the Public Prosecutor concluded that he lacked jurisdiction ratione materiae and ratione personae in this matter . As regards the Director General of the Kızılay , ORG noted that he was in GPE whereas the incident had taken place in GPE and that there was no fault directly attributable to him , bearing in mind particularly that he had not been involved in selling the infected blood .

On DATE the applicants filed an objection with ORG against ORG decision .

On DATE ORG dismissed the applicants ' objection for non - compliance with the DATE statutory time - limit to lodge their objection .

On DATE the applicants initiated compensation proceedings against the FAC and ORG . They requested non - pecuniary damage for the infection of the first applicant with HIV as a result of medical negligence on the part of the defendants .

On DATE ORG issued a decision of non - jurisdiction in respect of the case brought against ORG . It stated that these complaints must be brought before the competent administrative tribunal .

As regards the case instituted against the FAC , the court held that it was strictly liable for the incident as it had been established through a witness statement that the test which gave clear results on the presence of the HIV virus could not be carried out due to its high costs and that the health questionnaire system had not been in full practice at the time of the incident ( see paragraph CARDINAL above ) . It thus awarded the applicants MONEY ( GPE ) plus interest at the statutory rate running from DATE , the date of the incident . The court held , in particular :

“ ... As briefly mentioned above , PERSON suffers from AIDS after receiving HIV virus infected blood supplied by the GPE ORG . ORG is at fault for the infection of the child . This appeared from the sworn statements given on DATE by Prof . Dr. PERSON , who works at ORG , ORG and ORG . PERSON , who is a specialist on this subject , is the only witness of ORG and holds an academic title of “ professor ” . In his statements , he submitted that AIDS was a disease which could be detected with certainty by a special test but that , because it was very expensive , it was not employed . Bearing in mind that it was possible to detect HIV with sufficient certainty and that the ORG did not employ the test in question , because it was costly , then it should be held responsible for the infection of [ the child ] . The ORG has to bear the consequences of this [ negligence ] . It can not escape this [ responsibility ] . Either it has to employ the test which determines with certainty AIDS , or it fails to do the test and assumes responsibility for providing blood which was infected with AIDS .

Moreover , the ORG is at fault for the following reason : As is clear from the statements of the doctors indicated by ORG and , following the contamination of the plaintiffs ' child , ORG issued a circular on DATE and required the questioning of donors . It thus follows that this circular had to be issued because no such questioning took place at all previously or was not done properly .

Even assuming for a moment that the the Kızılay was not at fault in this incident , it still has strict liability ( kusursuz sorumluluk ) . This is the very requirement of justice .

PERSON was infected with HIV at a very young age because of the blood given by DATE . He caught AIDS , which is , together with cancer , CARDINAL of the most dangerous diseases of our age . It is unnecessary to explain how evil and fatal this disease is . It is highly unlikely that little ORG will survive this disease ; most probably he will lose his life . Even if he survives , he will live with this disease throughout his lifetime and everybody will avoid him . Strictly speaking , by having been infected with this disease , PERSON has become a social outcast . He should not have sexual intercourse and should not get married during his lifetime . It is impossible for a living person to endure this . Furthermore , PERSON should be taken care of very well . It is impossible to put into words how father PERSON and mother PERSON suffer from sorrow because of ORG 's infection with this disease . In view of the foregoing , the court considers that the award of FAC for each plaintiff in respect of non - pecuniary damages appears to be low . In fact , the sorrow and pain suffered by the plaintiffs can not be compensated even if quadrillions were awarded . As noted above , the amount of compensation awarded is an insignificant one and merely aims at lessening their pain to some extent . Having regard to the fact that DATE compensation of MONEY is awarded in a defamation case and that the amount in question would not even suffice to buy a car by the current prices of DATE , it is obvious that the increase of awards is inevitable . It is considered that DATE is the time to increase compensation to a satisfactory level . For this reason , the determination of the amount in this case , albeit insignificant , was in line with this view .

Notwithstanding the above , I should like to stress the following : the fact that an aid organisation like the Kızılay ... chose to pursue all avenues with full strength in order to avoid compensating ORG , instead of redressing his suffering , is thought provoking ... ”

On DATE ORG upheld the judgment and stated the following :

“ ... The case concerns the payment of damages incurred as a result of the tortious act of the defendant . In order to hold the defendant liable for the alleged act , it should be established that the defendant was at fault , that the plaintiff incurred damage as a result of the tortious act and that there was a causal link between the act and the damage suffered . There is no dispute between the parties that the damage in question occurred as a result of the blood used by [ ORG ] and that such an act is unlawful . Again , it is also undisputed that the plaintiffs purchased the blood , which was used for the treatment of ORG , from the the GPE office and that the blood was infected HIV positive .

The focal point of the dispute is whether ORG is at fault ... It is a known fact that a foundation such as the FAC has a noteworthy prominence in meeting the need for blood and is worthy of credence on account of this vocation . In other words , there is an assumption that the blood obtained from the defendant meets expectations . However , it appeared that the blood obtained and used [ in the present case ] was unclean and so malignant that there was no possibility of purifying it . The fact that the [ donor ] was the bearer of the known virus can not absolve the defendant from liability . The defendant should have subjected such an important and vital substance to all necessary tests and screening using the necessary technology in accordance with the purpose of its use and the importance of that substance . Nevertheless it appears that the blood in question was not subjected to the requisite tests available in DATE '

Turning to the defendant 's contention that the amount awarded in respect of nonpecuniary damage was excessive , ... [ I]t should be noted that the present and future life of the child , his mother and father have become dramatically insufferable . All segments of society will now avoid having any kind of social or physical contact with these people . Thus , it is apparent that the physical , social and personal values of all the plaintiffs , especially those of the child , shall be under attack during their lives . Having regard to the foregoing and particularly to the rule under LAW which stipulates ' ... parties ' social and economic conditions should also be taken into account ... ' , as well as to the current purchase value of money , the court concludes that the amount awarded in respect of non - pecuniary damage was not excessive . In this connection , when determining an amount for non - pecuniary damage , the amount in question should be satisfactory for the suffering party and should have a dissuasive effect for the harming party . Therefore , the defendant 's objections on this part of the case must be dismissed ... ”

On DATE the ORG paid a total amount of TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL to the applicants , to cover the nonpecuniary damage awarded by the court and the statutory interest applied to that sum .

On DATE the applicants initiated proceedings against ORG , requesting non - pecuniary damage .

On DATE ORG rejected the case on the ground that the judgment of ORG which had issued a non - jurisdiction decision in respect of the proceedings concerning ORG had been pending before ORG . On DATE the applicants appealed against this decision .

On DATE ORG quashed the decision and remitted the case to ORG for examination on the ground that the proceedings concerning ORG must have been considered to have become final , given that ORG had not appealed against ORG judgment .

On DATE ORG refused the applicants ' compensation claims . Referring to ORG judgment , ORG reiterated that the FAC and ORG were both liable for the first applicant 's HIV infection . The court added , however , that the purpose of awarding nonpecuniary damage was not to provide full restitution and the award of non - pecuniary damage twice for the same incident would have resulted in unjust enrichment .

On DATE the applicants appealed .

On DATE ORG quashed the judgment of DATE , holding that there was no provision in domestic law which could have prevented the administration from being held liable jointly with other real or corporate bodies .

On DATE ORG dismissed ORG rectification request against the above decision .

In a judgment dated DATE , ORG held that ORG personnel had been negligent in the performance of their duties . The court thus awarded the applicants TRL CARDINAL plus interest at the statutory rate running from the date on which the proceedings had been initiated , namely DATE . Both the applicants and ORG appealed against the judgment . The applicants challenged the failure of the court to order the defendant to pay the legal fees , whereas ORG challenged the outcome of the case .

On DATE ORG dismissed ORG appeal but partly quashed the judgment insofar as it concerned the fees . The parties did not inform the ORG about the outcome of these proceedings .

On DATE ORG paid CARDINAL,CARDINAL.CARDINAL ORG to the applicants .

On DATE the newly appointed ORG Kızılay presented their apologies to the applicants and decided to give a scholarship to the first applicant in order to contribute towards his educational costs . A delegation of board members visited the applicants and told them that the medical expenses of the first applicant would also be paid by the FAC .

According to the information given by the applicants , the ORG rejected the applicants ' claim for treatment and medical costs which amounted to ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) and ORG MONEY , respectively , per month . ORG also rejected their request for payment of these expenses .

The green card issued by the Governorship of GPE was cancelled right after the announcement of the judgments ordering the administration to pay compensation to the applicants .

The compensation awarded by the civil and administrative courts covered DATE medical treatment expenses and did not suffice to pay the costs of medication used by the first applicant .

The first applicant was not admitted to any school because of his condition and reactions from families of other pupils . He thus started his education at a hospital . Following public pressure and negotiations with ORG , he was ultimately admitted to a public school . Yet he has no close friends and suffers from stammering . DATE he sees a psychologist . Upon the latter 's advice , he attends drama and painting courses .

The third applicant 's ( the father ) health has been severely affected as a result of reactions from parents of other children and the school administration 's refusal to admit his son to school . Currently he is unable to work and provide any income for the family .

The family is in serious economic difficulty and is trying to pay the first applicant 's medical expenses with the help of family friends . Meanwhile , although some health associations offered help , they wanted to test some medications on the first applicant , which the family refused .

CARDINAL DATE ( Law no . CARDINAL dated DATE ) provides :

“ The powers and duties of ORG ... are as follows :

( c ) ORG and supervision of real and corporate entities which deal with blood and blood products ... ”

DATE Regulation on ORG ( dated DATE ) reads :

“ The following blood screening tests shall be conducted ; blood type , Rh , compatibility and cross - match , ORG tests , Hepatitis B , malaria parasite ... ”

Common provisions in the Law on Blood and Blood Productions and the Regulation on Blood and Blood Products are as follows :

“ All entities which deal with blood and blood products shall be inspected by ORG at least twice a year . Defects found during inspections shall immediately be remedied by the relevant entities . In the event the same defects are found to exist during the following inspection , the respondent individuals shall be subject to administrative and criminal proceedings . ”

On DATE ORG sent a letter to all governors , for distribution to hospitals , blood centres and public institutions , informing them about AIDS and the measures to be taken to prevent the spread of this disease . ORG stressed that particular vigilance must be shown when choosing blood donors . In particular , it required that blood donors be subjected to a medical examination prior to giving blood and that their blood be refused in case any symptoms of HIV AIDS were detected .

By a letter dated DATE , ORG informed the governors that all HIV AIDS cases must be reported to the health authorities . It noted that persons suspected of having HIV AIDS must be medically examined , and their blood , bodily fluids and all other relevant substances subjected to the requisite tests .

On CARDINAL DATE ORG issued a circular to all governors ( circular no . DATE ) , for distribution to public and private hospitals and clinics as well as to the FAC , for prevention of the spread of the HIV AIDS disease . ORG noted in this circular that HIV AIDS could only be transmitted through sexual intercourse , blood transfusion or multiple use of a syringe . In this connection , the ORG stated that the anti titre test was the most effective way of diagnosing HIV AIDS . This could only be done by the LAW method . It stressed that , prior to blood transfusions , the requisite LAW tests must be carried out . To that end , all hospitals should be equipped with facilities for carrying out LAW tests on blood given by donors . The hospitals which did not have such facilities should send blood samples to the hospitals which had blood centres .

By a circular dated DATE , ORG required all blood centres and stations to conduct ORG , ORG , AIDS and malaria tests on all blood and blood products . It stressed that no blood transfusions should be carried out if the aforementioned tests had not been conducted .

DATE , ORG adopted a number of recommendations aimed at ensuring the adoption of common rules in the health field . In the below - mentioned ORG drew Member PERSON ' attention to the growing importance of a new and severe health hazard , namely AIDS , which was caused by an infectious agent transmissible by blood and blood products , and invited them to adopt a number of measures to prevent the spread of this infectious disease . These Recommendations were as follows :

– Recommendation No . R ( CARDINAL ) CARDINAL , dated DATE , on blood products for the treatment of haemophiliacs ;

– Recommendation No . R ( CARDINAL ) DATE , dated DATE , on preventing the transmission of infectious diseases in the international transfer of blood , its components and derivatives ;

– Recommendation No . R ( CARDINAL ) CARDINAL on the prevention of the transmission of malaria by blood transfusion ;

– Recommendation No . R ( CARDINAL ) on preventing the possible transmission of AIDS from affected blood donors to patients receiving blood and blood products ;

– Recommendation CARDINAL ( DATE ) on the supply and utilisation of human blood and blood products ; and

– Recommendation No . R ( CARDINAL ) CARDINAL on the screening of blood donors for the presence of AIDS Markers .


The applicant , PERSON , is a GPE national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant is a chartered accountant and a licensed insolvency practitioner . Having accepted an appointment as trustee in bankruptcy of the estate of a bankrupt on DATE , his appointment was confirmed by the Secretary of ORG on DATE . The purpose of his appointment was to ensure that substantial court damages due to the bankrupt were transferred to him as trustee for the benefit of the bankrupt ’s creditors . He claims that on accepting the appointment the Assistant Official Receiver ( “ ORG ” ) had led him to believe , in a conversation on DATE and in a letter of DATE addressed to the bankrupt ’s solicitors , a copy of which was sent to the applicant , that he ( the ORG ) had not waived the interest of the creditors in the award .

However , the bankrupt was of the view that the ORG had in fact waived all claims over the award of damages and therefore commenced proceedings in DATE against the applicant , as trustee , seeking a declaration that the applicant had no interest in the award . The applicant defended the proceedings because of the ORG ’s assurances of DATE . During the proceedings , the ORG confirmed the statements made in DATE in a letter to the applicant ’s solicitors dated DATE and in an affidavit filed for the purposes of the proceedings .

The bankrupt was successful . The judge held that he was satisfied that the ORG had disclaimed all right to the proceeds of the bankrupt ’s claims and that the evidence satisfied him that the ORG was at the time very much overburdened with his general caseload of insolvency work . The bankrupt ’s costs ( MONEY ( “ GBP ” ) ) were awarded against the applicant . The applicant ’s own costs were in the region of GBP CARDINAL . The applicant was personally liable for the costs and , though he had a claim against the estate , this did not assist him as there were no other assets in the bankrupt ’s estate .

The applicant commenced proceedings in his own name for negligent misstatement against the ORG and against ORG ( “ ORG ” ) as allegedly vicariously liable for the tort of the ORG . The defendants applied to ORG to have the proceedings struck out as disclosing no cause of action or as being frivolous and vexatious and an abuse of process . They mainly argued that the statements of the ORG were made in his capacity as a potential witness and as a witness in proceedings ( those of the bankrupt against the applicant ) and that the ORG was entitled to immunity in that respect .

On DATE , ORG found that the ORG was entitled to “ immunity from suit ” as a witness in respect of statements he had made as a potential witness in the bankrupt ’s proceedings against the applicant . While that immunity did not apply to the statements of DATE as they were made prior to those proceedings even being contemplated , the pleadings did not disclose that those statements were negligent and there was , in any event , no causal link between those statements and the applicant ’s loss .

On DATE , ORG rejected the applicant ’s appeal . Giving the principal judgment of the court , ORG . identified the main question as being whether the ORG was entitled to immunity from suit in respect of the statements made to the applicant . However , since the existence of a cause of action depended on proof that the statements were negligent and were relied upon by the applicant and that he had suffered loss by doing so , PERSON examined those matters first . He found that the statement of claim did disclose a cause of action for negligent misstatement and that the claim should not have been struck out on the basis of a lack of a causal link between the statements and the applicant ’s loss .

The next question identified by ORG was whether the ORG owed a duty at law to take care in statements which he made to the trustee in bankruptcy . He noted that ORG judge had found that the ORG owed such a duty and stated that , if the same arguments had been advanced to him , he would have similarly concluded . However , he considered the question to be “ intimately connected with the question whether the [ ORG ] is entitled to immunity from action ” . It therefore seemed convenient to consider the question of immunity first because if the ORG was exempt from suit ( either as a witness as argued in ORG or as an officer of the court as argued before ORG ) , “ there would be no duty enforceable at law on which the appellant could found his claim ” .

ORG noted that bankruptcy proceedings were proceedings in a court of law , that throughout those proceedings the Official Receiver ( “ OR ” ) , and consequently an ORG , was an officer of the court both in connection with the proceedings “ in court ” and as regards his powers , duties and functions in the bankruptcy generally . The question was whether the ORG in making the statements relied on in the present case was “ liable to be sued in negligence ” .

It was considered “ well settled ” that in a court of law , solicitors , counsel , witnesses and judges were “ immune from action for statements made in the course of the proceedings , even if made maliciously ” . As to whether an OR acting in the course of the liquidation of a company was similarly entitled to immunity from suit , reference was made to the case of ORG ( [ DATE ] CARDINAL K.B. CARDINAL ) where the court held that a libel action could not be brought against an OR for a statement made in his capacity as OR and contained in the official report submitted under the companies’ legislation for the purpose of company liquidation proceedings , the performance of such a duty being absolutely privileged .

As to whether that immunity should extend to the statements in the present case ( the statements made by an ORG to the trustee in bankruptcy in DATE about the ORG ’s interest in the award ) , ORG reiterated that the courts should be slow to extend the scope of absolute privilege . He observed that , whenever a court denied a right of redress to a citizen who had suffered substantial loss on the grounds of public policy , it had to be recognised that the court was making a choice between the common interest and harm to the individual “ on political rather than legal grounds ” . A denial of the right to seek justice could only be justified on strong rational grounds and any policy arguments ( such as a “ floodgates ” argument ) demanded detailed analysis . He noted that the court in the ORG case gave CARDINAL reasons for the application of the immunity in that case : the duty of the OR to report with the greatest frankness all relevant matters ascertained by him and the fact that he was performing his duties as an officer of the court in connection with an inquiry which could be rightly considered judicial .

In the present case , ORG considered that the need for the greatest frankness was , of itself , sufficient justification for holding that statements made in the course of such a report should be entitled to absolute privilege and that the OR should be immune from action in respect of them . He also considered that the administration of justice would be seriously impeded if this were not the case , as in the case of statements which formed part of an investigation carried out by ORG ( PERSON v. Director of ORG [ DATE ] CARDINAL All . ORG ) . In this regard , he did not find the undoubted distinction between an action for defamation and an action for negligence sufficient to reject a claim to absolute immunity from action in the latter case .

ORG concluded :

“ To be afforded immunity from suit in respect of the statements made , the official receiver must be acting in the course of the bankruptcy proceedings and within the scope of his powers and duties . In the preparation of his reports , which are to be accepted as prima facie evidence , statements which he makes are it seems to me as much in need of immunity as statements made by a witness in the preparation of a proof of evidence or in the course of investigating offences of fraud . In the present case the official receiver was acting pursuant to his duty ... “ to give [ the ORG in bankruptcy ] all such information respecting the bankrupt and his estate and affairs as may be necessary or conducive to the true discharge of the duties of the trustee ” .

The getting in of the assets of the bankrupt ’s estate for the purpose of being distributed to the creditors is part of the bankruptcy proceedings and accordingly I would hold that in making the statements on which reliance is placed by the appellant the official receiver is entitled to immunity from suit . ”

He went on to reject the contention that the ORG ( the other defendant in the proceedings ) was vicariously liable for statements made by the ORG and held that , in any event , given the ORG ’s immunity from suit , the applicant could not establish a liability which would fall to be met vicariously .

In so concluding , ORG specifically responded to the argument that the law should encourage the use of all due care in the making of such statements and that the use of immunities did not have that effect . He replied :

“ The answer to this submission is , I think , to be found in the observation of PERSON in GPE v. PERSON , CARDINAL Q.B.D. CARDINAL , CARDINAL :

“ A court of justice has control over all proceedings before it : it has very great powers , to which I need not particularly refer , with regard to witnesses , solicitors and counsel ; the court can always check improper conduct . If such actions were allowed , persons performing their duty would be constantly in fear of actions . ”

Thus the need to encourage the greatest frankness of expression by the [ OR ] and the power of the court to control or check breaches of duty by him , for example in failing to take proper care in making statements in the reports , counterbalance any suggestion that to grant immunity from action might encourage laxity or carelessness . ”

Leave to appeal to ORG was refused on DATE .

The Official Receiver ( OR ) is appointed by the Secretary of ORG . Because of his statutory office , the OR is an officer of the courts to which he is attached . He is therefore answerable to the courts for carrying out the ORG orders and for fulfilling his duties under law .

When an individual is declared bankrupt , the OR has initial responsibility for the bankrupt ’s estate . He can in turn appoint an Assistant Official Receiver ( ORG ) who can represent the OR in all matters .

The trustee in bankruptcy ( the person in whom the bankrupt ’s property initially vests ) is , generally speaking , the OR or the ORG when there is little property to administer in relation to the bankrupt ’s estate . Where a substantial asset does emerge , it is the practice for the OR or the ORG to request a licensed insolvency practitioner to accept an appointment as the trustee in bankruptcy . Once accepted , the appointment of the trustee in bankruptcy will be made by the Secretary of ORG .

As described by ORG in the present case ( judgment cited above ) , the OR is a key figure in bankruptcy proceedings , which are regarded as proceedings in a court of law . Amongst other functions , under section CARDINAL of LAW DATE , it is the OR ’s duty to investigate and report on the debtor ’s conduct , take part in his public examination and , in the case of a fraudulent debtor , to assist in his prosecution if directed by ORG to do so . Under rule CARDINAL ) of DATE , the OR is also under a duty to give the trustee in bankruptcy all such information respecting the bankrupt and his estate and affairs as may be necessary or conducive to the true discharge of the duties of the trustee .

“ Throughout the proceedings in bankruptcy , therefore , the official receiver as an officer of the court will be required to make reports and statements on which the court , the ORG , committee of inspection , creditors and others will rely . ”


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE , GPE .

In DATE the applicant brought proceedings against ORG of GPE to claim welfare payments to which she was entitled in respect of her child .

On DATE the ORG of the Voronezh Region awarded the applicant MONEY ( RUR ) . This judgment entered into force on DATE .

On DATE the enforcement order was issued and sent to the bailiff service of GPE of GPE .

On DATE the applicant complained to ORG of GPE about the bailiffs’ failure to execute the judgment in her favour .

On DATE ORG of GPE informed the applicant that her award would be enforced in accordance with the order of priority set out by LAW .

On DATE the bailiff terminated execution proceedings in respect of the judgment of CARDINAL January CARDINAL , as the debtor had no sufficient funds . The applicant was suggested to bring an action against ORG .

On DATE the ORG of GPE granted the applicant ’s request to resume enforcement proceedings . In this decision the court dismissed the bailiff ’s argument that an action against ORG was necessary to secure execution of the judgment against ORG . The court found that the judgment of DATE could be enforced as it stood .

The sum awarded has not been paid to the applicant .