Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in the city of GPE , GPE .

On DATE the applicant was arrested on suspicion of crimes of swindling and taken to ORG ( ORG районний відділ міліції міста Харкова ) .

According to the applicant , he was handcuffed in the police station and police officers demanded that he confess . When he refused to do so , he was severely beaten several times . After each beating he was told that if he did not confess he would be subjected to further beatings . During the last beating CARDINAL of the police officers , PERSON , hit the applicant on the left ear , causing swelling and partial deafness . After the beatings , the police officers warned the applicant to “ think it over ” during TIME , otherwise he would be beaten again DATE .

The applicant maintained that he had had many scratches and bruises on his body . On DATE , when the police officers wanted to transfer him to a temporary detention centre ( ізолятор тимчасового утримання ) , the centre refused to admit him on account of his numerous injuries .

On DATE the applicant was escorted to hospital where he was examined .

DATE the applicant was transferred to a temporary detention centre .

On DATE the applicant was charged , but released on bail on condition that he did not abscond , by a decision of ORG .

DATE to CARDINAL DATE the applicant underwent medical examinations at the forensic medical examination department ( відділ судово-медичної експертизи ) . The forensic expert recorded various injuries to the applicant ’s body . The injuries included a damaged left ear , and bruises on the trunk , face , left arm and left leg ( qualified as minor injuries by the Government ) . The expert also indicated the approximate dates on which the applicant had sustained these injuries , CARDINAL DATE before DATE . Those dates coincided with the applicant ’s detention in ORG .

On DATE the applicant requested ORG to institute criminal proceedings against the police officers for torture . The request was transferred to ORG for consideration .

On DATE and CARDINAL DATE , the applicant requested ORG to inform him about the outcome of his complaint .

On DATE , the deputy prosecutor of GPE issued a decree refusing to institute criminal proceedings on the ground that there was no evidence that an offence had been committed . In his decree , the deputy prosecutor stated that criminal proceedings had been initiated against the applicant on DATE . The applicant confessed voluntarily to having committed the crimes of which he was charged when he learned that his accomplices had also confessed . Furthermore , police officers had been questioned about the applicant ’s allegations and had refuted the accusations against them . The deputy prosecutor concluded :

“ ( ... ) despite the fact that the forensic medical expert opinion No . CARDINAL of DATE [ established that the applicant suffered ] minor bodily injuries giving rise to a short - term disability , no evidence has been obtained that those injuries were inflicted by officers of ORG . The [ applicant ’s ] arguments set out in his request must be considered to have been invented by him . He was fully aware that the investigation gave rise to sufficient proof that he had committed the crimes of which he was accused . He is now trying to avoid the punishment he deserves ” .

On DATE the applicant appealed against this decision to ORG and to ORG . ( According to the Government , it was on DATE that the applicant complained to ORG , and then on DATE to the court , paragraph CARDINAL below . )

On DATE ORG informed the applicant that it had rejected his request to quash the decree of CARDINAL DATE .

On DATE the applicant lodged a complaint with ORG of Kharkiv challenging the decree of CARDINAL DATE .

On DATE the ORG quashed the decree of DATE and ordered that criminal proceedings be opened against the accused police officers under LAW ( excess of power ) . The court stated that the prosecutor had failed to investigate the cause of the applicant ’s injuries and that the prosecutor ’s refusal to institute criminal proceedings against the police officers in question had been unreasonable .

The criminal case was sent to ORG . On DATE this ORG requested ORG to lodge a supervisory review appeal with the ORG of ORG against ORG decision of DATE . The applicant was informed of this on DATE .

On DATE ORG rejected the request , finding no grounds for such a review , and returned the case file to ORG . The applicant was informed of this development by letter of DATE .

Criminal proceedings were initiated on DATE by ORG , but terminated by decree on DATE for want of evidence that any crime had been committed . Nevertheless , according to the ORG , DATE investigators interviewed several witnesses , including the police officers and the applicant ’s relatives .

Following the applicant ’s complaint , on DATE ORG quashed the decree of ORG and sent the case to ORG . The latter in turn transferred the case on DATE to ORG for a further preliminary investigation .

On DATE ORG began the investigation .

In DATE and DATE several other witnesses were questioned and confrontations were organised .

On DATE a forensic medical examination was ordered within the framework of the investigation .

On DATE the expert examination concluded that the applicant had suffered bodily harm of medium severity which could have occurred in the circumstances alleged by the applicant .

On DATE a supplementary forensic examination was ordered as the first was deemed incomplete .

According to the Government , on DATE the second expert opinion established that the applicant had sustained minor bodily harm prior to his detention in ORG .

At the request of the applicant ’s lawyer , CARDINAL of the medical experts was interviewed in the presence of the lawyer on DATE . The same day the lawyer requested an additional medical examination since , in his view , the second report lacked any scientific basis and was contradicted by the other evidence in the case . Although the prosecutor received the request , the lawyer never had a reply .

On DATE , on conclusion of the additional investigation , ORG issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed . ( The applicant was informed of this on DATE . ) The prosecutor stated , inter alia , that the police officers who had been questioned had denied the accusations against them and had explained the applicant ’s allegations with reference to the criminal proceedings brought against him . The prosecutor further stated that the testimonies of T. and O. , confirming the applicant ’s allegations , had to be disregarded since they were the applicant ’s co - accused . The prosecutor also maintained that the medical examination had concluded that the applicant ’s injuries could have been caused before he was detained at the police station .

On DATE and DATE the applicant and his lawyer requested the district prosecutor to provide them with the case file . By letter of DATE , the prosecutor replied that the materials in the case file had been sent to ORG for examination .

Following the filing of several complaints by the applicant and his lawyer with the District , Regional and ORG , ORG informed the applicant on DATE that the criminal case , in so far as it concerned the alleged excess of power by police officers , had been closed , but that the question of the infliction of minor bodily harm had been remitted for further investigation .

That DATE , DATE , the GPE prosecutor ’s ORG quashed the decision of DATE and remitted the case to ORG , which on DATE recommenced the investigation .

Because of the contradictory findings of the previous forensic medical examinations , an additional examination was entrusted to ORG in GPE .

On DATE ORG received an expert opinion dated DATE in which it was stated that the applicant had sustained bodily injury of medium severity that could have been inflicted in the circumstances alleged by the applicant .

On DATE ORG instructed ORG to complete the investigation as soon as possible .

On DATE ORG issued a decree terminating the criminal proceedings on the ground that the actions of the law - enforcement officers had not given rise to any criminal offence . It reclassified the criminal offence as the infliction of bodily injury of medium severity by unknown person(s ) and remitted the criminal case for investigation to ORG .

The applicant appealed against this decree to ORG .

On DATE the criminal investigation was stayed and it was decided to continue the operative search as the offender had not yet been identified .

On DATE ORG quashed the decree of DATE and remitted the case for an additional investigation . The court noted , in particular , that the investigating authorities had failed to take all necessary measures to identify and question independent witnesses , given that the applicant and the law - enforcement officers had made contradictory statements .

On DATE the ORG passed a resolution discontinuing the criminal investigation against the police officers indicated by the applicant , and decided that the fact of the infliction of bodily harm of medium severity required further investigation .

The investigation is still pending because the offender has not yet been found .

The relevant extract of the LAW of GPE provides :

Article CARDINAL

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

Article CARDINAL of the LAW provides that the court , prosecutor or investigator shall , within their competencies , institute criminal proceedings in every case where signs of a crime have been discovered , take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them .

Article CARDINAL of the Code prohibits extracting confessions from an accused or any other participant in the proceedings through violence , threats or other illegal means .

Article CARDINAL of the LAW provides that the person who sustained material damage from the crime shall be entitled to lodge a civil claim against the accused person or persons who bear material liability for the actions of the accused .

Article CARDINAL of the Code foresees an obligation of the court to suspend proceedings in the case , if it can not be examined prior to the decision in another case examined under civil , criminal or administrative proceedings .

The relevant extract of the PERSON provides :

Article CARDINAL

“ The right to compensation for damages in the amount and in accordance with the procedure established by this PERSON shall arise in the cases of :

- acquittal by a court ;

- termination of a criminal case on grounds of an absence of proof of commission of a crime , absence of corpus delicti , or lack of evidence of the accused ’s participation in the commission of the crime ;

- refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub - paragraph CARDINAL of paragraph CARDINAL of this Article ;

- termination of proceedings for an administrative offence . ”


Violation of Art. 10;Costs and expenses partial award - Convention proceedings

The applicant is a GPE national who was born in DATE ; he is an advocate practising in GPE ( GPE ) .

On DATE the ORG , a private organisation holding a public broadcasting license , broadcast a television documentary entitled “ Secret mothers ” ( PERSON moeders ) . It featured a woman , CARDINAL PERSON , who claimed to have been the victim of incest committed by her grandfather , her father and CARDINAL of her brothers .

PERSON alleged that CARDINAL pregnancies had resulted . CARDINAL had been terminated . Of the babies born from the other CARDINAL , CARDINAL had been ritually murdered and one had been sold .

These statements were said to be based on memories which PERSON had repressed but which she had been able to recover with the aid of a therapist , PERSON , who had been treating her for DATE .

The PERSON family , who denied the truth of PERSON allegations , sought the assistance of the applicant .

The GPE public prosecutor ( officier van justitie ) opened a prosecution file , charging the ORG with criminal libel .

On DATE the public prosecution service published a press release in which it was stated that the ORG had admitted having libelled the PERSON family and had settled out of court . The prosecution had been dropped subject to the conditions , which the ORG had accepted , that the ORG would pay a sum of money to the public prosecution service , publish a retraction and pay the PERSON family compensation for pecuniary and nonpecuniary damage and legal costs .

On DATE another private organisation holding a public broadcasting license , the ORG , broadcast a radio programme featuring an interview with the applicant about the case of the PERSON family .

The applicant said , among other things :

“ Here we are faced with a dangerous group of individuals who ... [ though ] unproved , nonetheless present , er , a horrible crime . I mean , we 're talking about CARDINAL infanticides , we 're not talking about nothing . ... all right , QUANTITY murders , CARDINAL abortion and CARDINAL child allegedly sold , whatever , it 's a terrible accusation and you ca n't just do that . That should not go unpunished . ”

The interviewer explained that the reference was to

“ ... alternative therapies such as hypnosis and regression therapy ... ”

going on to say :

“ The alternative therapist who was treating PERSON at the time was PERSON . He actually does believe in recovered memories , and therefore also in the recollection of incest and of quadruple infanticide . ”

Referring to the intuitive methods used by PERSON , the interviewer stated :

“ So , PERSON can sense and see whether people have been sexually abused . ”

The applicant responded , saying , among other things :

“ I ca n't understand how he , how he can do that ! To me , that shows how dangerous these therapists are . Someone like that should n't , should not be allowed to be a therapist surely ? That man , he lives in GPE province , he should , er , grow cabbages for the market ... He should go and grow cabbages out there , but he should absolutely not be working with with with patients , or with people who who are in emergency situations . I find this very worrying . I consider this very unprofessional . It 's possible of course [ that ] these people are NORP ( magiërs ) , that has nothing to do with therapists , nothing to do with doctors . They take people back in regression therapy . Where was that man educated ? Where did that man study ? I have no idea , and what does he presume to be ? That man likens himself to God . There is no medical practitioner , surely , who could say that ? ”

Later in the programme , referring to a conversation which PERSON had had with PERSON parents in DATE , the applicant said , among other things :

“ ... I just ca n't imagine how anyone can be so presumptuous as to tell CARDINAL vulnerable old people , like some sort of guru , and , er , his truth , and then give them an audio tape and tell them : well , go and listen carefully to what I have said . Such arrogance . In my opinion it 's quite terrible . Well , if you know that father PERSON died shortly after that , he went to his grave accused by him , right , accused by a relative ... ”

NORP The programme also comprised an interview with PERSON , who stated that he was neither a hypnotist nor a regression therapist properly socalled . He believed , however , that the emotions aroused by relaxation exercises and acupressure reflected true events and he was certain that the memories which he had helped PERSON recover were the truth .

On DATE Mr PERSON lodged a complaint against the applicant with the PERSON ( deken ) of ORG ( PERSON ) .

The PERSON gave a provisional opinion on DATE . It mentions that PERSON was asked , on DATE , to state his medical and scientific qualifications but declined to do so .

The PERSON noted that Mr PERSON 's refusal to state his qualifications did not , at any rate , indicate that the applicant 's statements were incorrect . However , it was understandable that Mr PERSON should feel aggrieved and it was not clear that the interests of the PERSON family were served by the applicant 's statements .

The provisional conclusion was that the complaint was well - founded . The PERSON forwarded Mr PERSON 's complaint to ORG ( ORG ) on DATE .

ORG held a hearing on DATE . On DATE it gave a decision finding Mr PERSON 's complaint unfounded . It recognised that the PERSON family had a legitimate interest in contesting , in the media and elsewhere , the accusations levelled against them by PERSON ; the applicant 's expressions , though forceful , had not been disproportionate .

Mr PERSON appealed to ORG ) .

That ORG held a hearing on DATE , at which it was stated among other things that PERSON had been practising as a self - employed psychotherapist since DATE . He had been trained at ORG , after which he had taken some practical and theoretical courses and a DATE course on multi - method relationship therapy . He was a recognised member , supervisor and trainer of ORG ( PERSON ) . He was associated with the private foundation ( ORG ( PERSON Registratie- , Certificatie- en Ontwikkelingsinstituut PERSON , also known as “ Registration Institute for Nature - Oriented Health Care ” , GPE - instituut PERSON , or “ RING ” ) , which had set up a disciplinary system .

On DATE the ORG gave its decision . It considered that a lawyer had not to judge the quality of a particular therapeutic method . Although PERSON had levelled accusations against her family involving CARDINAL pregnancies , CARDINAL infanticides , an abortion and the sale of a baby , PERSON PERSON had not been present when she did so ; the applicant should therefore not have connected Mr PERSON to them .

Nor should he have suggested that PERSON alleged repressed memories had been caused by PERSON use of hypnotism or regression therapy , PERSON not having claimed to be a hypnotist or a regression therapist . The applicant had been unclear in explaining what improper therapeutic measures exactly he held against PERSON .

The conversation between Mr PERSON and PERSON parents in DATE , also criticised by the applicant , had not been part of the therapy . In any case , the applicant 's criticism of that conversation was unfounded given that the applicant had not clearly explained why he considered Mr PERSON negligent in his therapeutic methods .

The applicant 's vagueness might have been defensible if only he had chosen to make the interview a “ clarion call ” ( klaroenstoot ) preparatory to a civil suit to follow shortly after , but no civil suit had ever been brought .

The applicant had not been entitled either to describe Mr PERSON as a “ magus ” who “ likened himself to God ” . Mr PERSON had in fact stated , in his DATE conversation with PERSON parents , his reasons for believing the truth of PERSON statements , and he had been careful to spare them feelings of guilt for the acts of their sons and to avoid labelling the sons as delinquents .

Whether or not the applicant could be said to have used “ irony ” , as he argued , the way in which he had expressed himself had been unnecessarily wounding ( onnodig grievend ) for PERSON .

Mr PERSON 's complaint was therefore well - founded . Since the applicant had a clean record , he was given a mere admonition ( CARDINAL waarschuwing ) .

On DATE Mr PERSON , through his counsel , informed the ORG that he had instituted civil proceedings in the competent domestic tribunal , which proceedings had been adjourned pending the ORG 's decision .

The PERSON family brought an action for damages against Mr PERSON on DATE , based on what the applicant describes as the escalation of PERSON problems and the statements made by PERSON as to the veracity of Ms A.K.s alleged recollections .

DATE the Kingdom of the GPE provides as follows :

“ CARDINAL . No one shall require prior permission to make public thoughts or feelings ( gedachten of gevoelens ) in printed form , the individual responsibility of everyone under the law notwithstanding .

There shall be statutory rules governing radio and television . There shall be no prior control of the content of a radio or television broadcast .

No one shall require prior permission to make public thoughts or feelings in any other way than those mentioned in the preceding paragraphs , the individual responsibility of everyone under the law notwithstanding . ...

The preceding paragraphs are not applicable to commercial advertising . ”

Section CARDINAL of LAW ( GPE ) provides as follows :

“ Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates visàvis those whose interests they look after , or ought to look after , any breach of the Regulations of the National Bar , and any act or omission not befitting a respectable advocate ( enig handelen of nalaten dat een behoorlijk advocaat niet betaamt ) . This disciplinary justice shall be dispensed at first instance by ORG , and , on appeal , by ORG , which shall also be the highest instance . ”

Guidance on the nature of an “ act or omission not befitting a respectable advocate ” is found in LAW advocaten ) , the most recent version of which dates from DATE . The Rules relevant to the present case are the following :

“ Advocates should conduct themselves in such a way that confidence in the profession or in their own exercise of the profession is not diminished . ”

“ Advocates should not express themselves , either orally or in writing , in a way that is unnecessarily wounding . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and CARDINAL DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

DATE he made CARDINAL requests that a date be set for a hearing .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed CARDINAL medical experts . The court also sought an additional opinion from CARDINAL of the appointed experts .

The proceedings are still pending .


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

On DATE the applicant filed with ORG ( sąd wojewódzki ) an action in which he claimed damages from one of his partners in a partnership allegedly responsible for a sale of the partnership 's property without the applicant 's prior approval . He sued also a certain company X which had purchased that property .

On DATE the court exempted the applicant from court fees .

On DATE it refused the applicant 's request for an interim measure . His appeal against that decision was dismissed on CARDINAL DATE by ORG ( sąd apelacyjny ) .

On DATE the applicant submitted pleadings with a CARDINAL - page annex . In DATE and DATE , as well as in DATE , he submitted further pleadings and requested the summoning of CARDINAL witnesses .

ORG held a hearing on DATE . It completed the examination of the case and informed the parties that it would pronounce its judgment on DATE . Subsequently , the applicant submitted pleadings containing motions concerning evidence . On DATE the court resumed the examination of the case .

The hearing scheduled for DATE was adjourned because of the absence of a lay judge .

On DATE the court held a hearing .

On DATE it declared its lack of jurisdiction over the applicant 's claims in respect of his partner and transferred that part of the case to ORG ( sąd rejonowy ) .

ORG held hearings on DATE , as well as on DATE , DATE and DATE . It ordered an expert opinion .

On DATE the court refused the applicant 's request for an interim measure .

The expert opinion was submitted on CARDINAL DATE .

Subsequently , the applicant challenged that opinion .

At the hearing held on CARDINAL DATE the court ordered a supplementary expert opinion .

At the hearing of DATE the court completed the examination of the case .

Subsequently , the applicant filed a petition in which he complained about certain errors in the minutes from that hearing . On DATE the court issued a decision concerning those errors .

On DATE the applicant submitted pleadings . On DATE the court resumed the proceedings and requested the applicant to specify his claim .

In DATE the applicant requested the court to summon a customs office to join the proceedings as an intervener for the applicant .

At the hearing held on CARDINAL DATE the court dismissed that request . The applicant requested the written reasoning of that decision . On DATE his request was rejected as not provided for by the law .

On DATE the court gave judgment . It awarded the applicant MONEY with interest . Both the applicant and the defendant company appealed .

ORG held hearings on DATE and DATE .

On DATE it gave judgment . The court amended the judgment of the first - instance court in that it dismissed the action filed by the applicant . He received a copy of the written reasoning of that judgment on DATE . On DATE the applicant lodged with ORG a cassation appeal against that judgment .

On DATE ORG dismissed that appeal .


Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

On DATE the Innsbruck ORG ( PERSON ) ordered the first applicant 's detention on remand on suspicion of having committed homosexual acts with adolescents contrary to LAW .

On DATE the ORG convicted the first applicant under LAW and sentenced him to DATE imprisonment . It found that , from DATE until his arrest , the first applicant had had sexual relations with CARDINAL different male minors born in DATE and DATE respectively . In determining the sentence the court had regard to the first applicant 's confession as a mitigating circumstance and to his previous convictions as aggravating circumstance .

On DATE the first applicant started to serve his sentence of imprisonment at ORG prison . On DATE the first applicant was granted early release from detention .

On DATE ORG convicted the second applicant under LAW and sentenced him to DATE imprisonment , suspended for a probation period of DATE . It found that on DATE the second applicant had had a sexual encounter with a male minor born in DATE . Referring to LAW the court found that the conditions for an extraordinary mitigation of sentence ( ausserordentliche PERSON 's guilt .

On DATE the second applicant appealed , arguing , inter alia , that LAW was unconstitutional in that it did not comply with LAW CARDINAL .

On DATE ORG dismissed the second applicant 's appeal . The ORG stated that it had no doubts about the constitutionality of LAW and referred in this respect to ORG case - law .

Any sexual acts with persons DATE are punishable under ORG CARDINAL and CARDINAL of LAW .

Article CARDINAL of LAW , in the version in force at the material time , read as follows :

“ A male person who after attaining DATE fornicates with a person of the same sex who has attained the age of DATE but not the age of CARDINAL shall be sentenced to imprisonment for DATE . ”

On DATE , upon a request for review made by ORG , ORG found that LAW was unconstitutional .

On DATE ORG decided to repeal LAW . That amendment , published in ORG ( ORG ) no . CARDINAL/CARDINAL , came into force on DATE .

The ORG notes that the legal situation has remained unchanged since DATE , when it gave its PERSON and PERSON v. GPE judgment ( nos . CARDINAL and CARDINAL , ORG CARDINAL-I ) . For a more detailed description of the law , ORG judgments concerning LAW and the parliamentary debate relating to the issue , it therefore refers to the said judgment ( § § DATE ) .


The applicant , Mr PERSON , is a national of GPE , who was born in DATE . He is currently in prison in GPE , FAC . He is represented before the Court by PERSON , a solicitor practising in GPE , and by PERSON GPE and PERSON , both barristers practising in GPE .

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

On DATE an elderly man collapsed and died during a violent burglary in his home . On CARDINAL DATE the applicant was arrested on suspicion of murder . He was questioned CARDINAL times over DATE and CARDINAL video recordings were made of those interviews . The applicant was then released . Some time later the police conducted extensive covert surveillance operations during the course of which the applicant was heard to make incriminating remarks .

The pathologist ’s report of DATE recorded that the victim had been suffering from a long term hypertensive heart disease and that a combination of his minor injuries and the fear engendered by the burglary caused his death .

On DATE the applicant was re - arrested and on DATE he was charged with murder . He was interviewed CARDINAL times over DATE ( along with a co - accused ) during which videos from the covert surveillance were shown to him ( image only ) . The applicant ’s legal representative indicated during those interviews that the images on the videos were poor . Videos were also taken of those interviews .

The applicant appeared before ORG on DATE for the first time when he was remanded in custody on the murder charge , the statutory custody time - limit of DATE to expire on DATE according to section CARDINAL ) of LAW DATE ( “ the DATE LAW ( Custody Time Limits ) Regulations DATE ( “ the DATE LAW ) . The DATE was , subject to an extension of that time - limit or the granting of a new time - limit , therefore the date foreseen for the applicant ’s committal on a charge of murder . As later established before ORG , on DATE , CARDINAL of the witness statements had already been prepared by the police ( out of the total CARDINAL statements eventually obtained ) .

By letter dated DATE the applicant ’s representatives requested the prosecution to make full disclosure . The response , dated DATE , indicated that the police had been asked to supply the relevant extracts from the video surveillance , which constituted “ key ” prosecution evidence in the case against the applicant . On DATE the defence again requested the prosecution ’s disclosure .

On DATE the police submitted its file of the evidence to the prosecution . On DATE the prosecution requested further statements to be taken by the police .

In the meantime , the pathologist had been asked to comment specifically on the association between the burglary incident and the victim ’s death . On DATE the pathologist produced a report leading to the same conclusions as the report of DATE , albeit expressed more succinctly . On DATE the prosecution also received the requested statements from the police .

DATE the prosecution served its full file on the defence which included CARDINAL TIME videos of the covert surveillance , CARDINAL interview tapes ( together with transcripts of those videos ) and CARDINAL witness statements and CARDINAL pages of documents including police interviews . The prosecution confirmed that they were ready for committal of the applicant on a charge of manslaughter , although it reserved its position on the initial charge of murder pending perusal of any evidence received post - committal . The prosecution indicated what parts of the videos and material were relevant for its case .

The applicant ’s representative immediately reserved the first date available in the video room in the applicant ’s prison ( DATE ) to view the videos with him . On viewing the videos on that date his representative noted that further copies of the videos would have to be obtained as the images were unclear and the audio was substandard . On DATE the defence indicated that it was not ready for a committal hearing as it had insufficient time to fully consider the evidence served .

On DATE the applicant appeared before ORG . The prosecution offered no evidence on the murder charge and formally preferred a new manslaughter charge indicating that it was ready to commit the applicant for trial on the latter charge . ORG extended the original custody time - limit ( finding that the prosecution had acted with due expedition ) , accorded a further custody time - limit in light of the new charge and adjourned committal proceedings on the manslaughter charge for DATE to allow the defence to consider the prosecution evidence .

On DATE ORG considered and decided the applicant ’s appeal from ORG . In the first place , ORG found that the preferring of the new charge did indeed give rise to a new custody time - limit :

“ ... the question is whether any new or amended charge is in substance a different offence , and there is no doubt that manslaughter is a different offence . . . carrying a different mens rea , and . . . significantly different consequences might flow in terms of length of sentence . . . it must follow that the time limit runs de novo from the preferment of the new offence of manslaughter . ”

ORG also rejected the applicant ’s submission that the prosecution had demonstrated mala fides , which the applicant considered was demonstrated by the similar conclusions in the pathologist ’s reports of DATE and by the prosecution ’s reservation of the possibility of re - entering the murder charge depending on evidence later emerging . It found that the prosecution had not sought to manipulate the custody time - limit by the addition or substitution of a manslaughter charge .

Secondly , it went on to consider the extension of the original custody time - limit , a relevant matter as any refusal of the extension would allow a bail application to be made . The prosecution argued that , although it had a good number of prosecution statements by DATE , it had considered it preferable to serve the entire prosecution file in DATE rather than do so piecemeal DATE . It considered the case was of some complexity and that there were ongoing enquiries concerning the nature of the charge ( murder or manslaughter ) to be retained against the applicant . It was of the view that the defence had sufficient time DATE and DATE to review the documents to be ready for the committal hearing on DATE . The defence accepted that it was a complex matter , but submitted that the prosecution should have served the substantial material in their possession much earlier and that it had insufficient time to consider all the material and to take instructions prior to the committal hearing , not to mention the fact that the videos eventually served were of unacceptable quality .

The ORG judge found that the original time - limit should not have been extended since he had “ no hesitation in finding ” that the prosecution had not acted with “ due expedition ” . He found that the prosecution , having been put on notice in DATE that the videos were of poor quality , took until DATE to produce further poor quality videos which could not be viewed by the prisoner until DATE , DATE before the hearing before ORG . He concluded :

“ I could go into more detail than that , but I do not think I need to for this purpose . So I find , as I say , that the Prosecution have not acted with all due expedition , and of course CARDINAL bears in mind that they had many , many of the witness statements in their possession before DATE ] , the date of [ the applicant ’s ] first appearance [ before ORG ] , and they decided to hold on to them until DATE before the expiry of the time - limit . It just will not do . ”

The applicant was therefore entitled to apply for bail on the basis that the finding of insufficient expedition by the prosecution constituted “ changed circumstances ” within the meaning of LAW DATE ( as amended – “ the CARDINAL Act ” ) . During the bail application , the applicant ’s counsel clarified that a bail application had not been previously made on the applicant ’s behalf . However , since the applicant had previously committed a number of offences on bail and had failed to surrender to bail on CARDINAL occasions , the ORG refused bail on the basis that it was believed the applicant would fail to surrender and would commit an offence on bail .

On DATE the applicant applied to ORG for leave to challenge by judicial review ORG ruling that a further custody time - limit had been created by the new manslaughter charge .

On DATE the applicant was committed to ORG for trial by ORG .

On DATE ORG rejected the applicant ’s leave application , Mr Justice PERSON delivering the judgment of the court . He noted that , while the Prosecution had acted with commendable speed having received the papers from the police in DATE , the period of time that had elapsed since the burglary in question was prima facie evidence that the police had not acted with “ all due expedition ” . He also noted that the substitution of the charge of manslaughter for murder was unnecessary as ORG could have been invited to commit the applicant on the manslaughter charge but that its substitution led to a new custody time - limit being created . Noting that there was no submission that the prosecution had acted in bad faith , Mr Justice PERSON found that the substitution of the manslaughter charge , although unnecessary , was :

“ a thoroughly desirable course to take , because accused persons should only be charged , committed and tried for offences which are reflected in the available evidence . That thoroughly desirable course , however , at the same time may provide a passport for avoiding the statutory consequence of thoroughly dilatory preparation . ”

Mr Justice PERSON did add that he considered the law to be somewhat unsatisfactory :

“ The purpose of the [ DATE ] Regulations has been stated and emphasised time and again . Once the custody time limit of DATE has expired , the onus is fairly and squarely on the prosecution to seek and to justify , in accordance with section CARDINAL(CARDINAL)(b ) of the DATE Act the granting of an extension . No question of the prosecution having to make out a case for an extension arises however if another offence is charged . Providing that offence is supported by evidence , the prosecutor ’s position , subject to the abuse point ( which I will refer to in a moment ) , appears to be unassailable . If a charge is withdrawn and another one substituted or a further offence is charged ( as an alternative ) a new custody time limit is still created . This , quite legitimately , can happen more than once . New custody time limits could follow , one after the another , without there having been the slightest variation in size or content of the evidential canvas , but simply as a consequence of the prosecutor ’s decision to found a charge or a different charge or an alternative charge on a particular area of the evidential material . However dilatory the preparation , however late in DATE the late charge is preferred , the prosecution ’s position may thereby be protected .

For the claim “ abuse of process ” to succeed , bad faith must be established . That is a heavy burden to discharge . It is not altogether clear on the authorities whether the charging of an offence justified on the evidence , but solely for the purpose of creating a new custody time limit , itself amounts without more to bad faith . If it does not , then it is difficult to see how there could be any effective challenge to these practices . This considerable measure of latitude which has been extended to prosecutors seems to me to be wholly inconsistent with the purpose of LAW , because , in effect , it enables the prosecution to bypass the requirement in section CARDINAL(CARDINAL)(b ) [ of LAW ] that any extension of the time limit has to be justified by showing , under the amendment to section CARDINAL(CARDINAL)(b ) introduced by paragraph CARDINAL of LAW DATE ( which appears not yet to be in force ) , not only all due expedition but also due diligence . ”

Mr Justice PERSON certified a point of law of public importance for ORG to consider , namely :

“ When in a GPE court does the charging of an offence cause a fresh custody time limit to run . ”

On DATE ORG considered a new indictment including charges of manslaughter , wounding with intent and aggravated burglary . The applicant pleaded not guilty . However , at his trial on DATE he pleaded guilty to manslaughter , the other charges remaining on the file . On DATE he was sentenced to DATE imprisonment . His pre - trial custody was deducted from his sentence ( Section CARDINAL(CARDINAL ) of ORG .

On DATE ORG rejected the applicant ’s submissions as to the meaning and application of GPE .

Lord PERSON of GPE noted that a mere change of the details of a charge does not mean that the time - limit begins again since the offence remains the same . Equally , where the initial and second offences are plainly distinct ( for example , burglary and rape ) , the second charge attracts its own time - limit . While the present case fell somewhere between those CARDINAL situations , it was not possible to interpret the legislation so as to exclude a further time - limit where the initial charge “ necessarily includes or amounts to , whether expressly or impliedly , the new offence charged ” as suggested by the applicant . A further time - limit would only be excluded where the constituent elements of the new offence were “ in substance the same as those of the original offence ” , which was not the case of the murder and manslaughter charges .

It was accepted that a new time - limit would not , however , begin if the preferring of a further charge amounted to an abuse of process :

“ It has been said that where the new charge is brought in bad faith or dishonestly , that would amount to an abuse of process . In my view the ambit of ‘ abuse of PERSON is not so limited . If a new charge is brought simply to keep the accused in custody for a longer period , that is clearly contrary to the intention of the legislation and constitutes an abuse of process . As Professor PERSON said in his commentary to R v. ORG , ORG [ DATE ] Crim . LR CARDINAL , at p. CARDINAL ) :

‘ Perhaps the more specific question to be asked is whether the charges of possession with intent were brought solely for the purpose of retaining the applicants in ORG

Equally if the court is satisfied that the way in which and the time at which the new charge is added or substituted , indicates that it is not done for the genuine purpose of introducing a new charge on a revised assessment of the case , but is done primarily to keep the accused in custody on the initial charge , then this will constitute an abuse of process . Of course on the other hand if the purpose is genuinely to introduce a new charge on such a revised assessment the fact that the accused begins a new custody period does not in itself constitute an abuse of process .

It was not contended [ in ORG ] that there was an abuse of process here and on my view of the construction of the section and the ORG such a matter does not fall for consideration on the present appeal . ”

As to the applicant ’s complaint that this manner of proceeding was arbitrary and in violation of LAW :

“ In my view , however , it has not been shown that his detention was arbitrary . No complaint can be made for DATE period : the second is justified because a new charge is brought on the basis of a very substantial body of evidence delivered to the defence shortly before the second charge was laid . It was right to change the charge to the lesser offence of manslaughter in the light of the reconsideration of the case . For the serious offences involved here , I do not consider that the periods prescribed in the ORG can be said to be unreasonable .

Moreover there was an opportunity to challenge the laying of the second charge and the second detention period as an abuse of the process of the court . That was not done , understandably . There existed a procedure by which the decision of the Magistrate could be challenged by way of judicial review . That was done in this case . During the period when the appellant was in the custody of the GPE court , the provision of section CARDINAL ) of the Magistrates’ Court Act DATE requires that a [ GPE ] “ court may not remand a person for a period exceeding CARDINAL clear days ” [ subject to certain exceptions ] . ”

Lord Hope of PERSON also found that the ordinary canons of construction implied that each offence laid before ORG attracted its own custody time - limit . In his reasoning he described the inquiry of ORG under sections CARDINAL and CARDINAL of LAW DATE ( “ the DATE LAW ) as follows :

“ The function of the GPE court , as described in DATE of [ the DATE ] Act , is to inquire into ‘ an offence as examining justices’ : see section CARDINAL(CARDINAL ) and section CARDINAL ) and ( CARDINAL ) [ of LAW ] . If a GPE court is satisfied that there is sufficient evidence to put the accused on trial by jury ‘ for any indictable offence’ , the court must commit him for trial : section CARDINAL ) [ of LAW ] . The implication is that it will take that step with regard to ‘ the offence under inquiry’ : see the concluding words of the subsection . Alternatively the court may commit him for trial ‘ for DATE if it is satisfied that all the evidence before the court consists of written statements tendered under LAW without consideration of their contents .

Thus the scope of the inquiry is determined by the information which has been laid before the GPE court . The guiding principle is that the offence should be described in the information clearly and definitely , without duplicity or uncertainty ... The court ’s function is to inquire into the offence charged in the information as examining justices . I do not think that there is any ambiguity about what is meant in regulation CARDINAL ) [ of LAW ] by the word ‘ offence’ in these circumstances . It means the offence with which the person is charged in the information which has been laid against him in that court .

It is normal and proper practice for the prosecution to review the charge or charges in the information which was initially laid before the court as further inquiries are conducted into the state of the evidence . This may lead to the bringing against the accused of what are undoubtedly fresh charges , with the consequence that these new charges will attract their own custody time limit . ”

As to the compatibility of that interpretation of LAW ) of LAW with LAW , he noted that the primary means for controlling the detention of a person while in the custody of ORG are found in the provisions of LAW . The function of GPE was to set maximum custody time limits . If a custody time limit expired before the completion of the stage of the proceedings in question , “ the accused had to be granted bail ” . It was also open to the justices to grant bail at any time before the expiry of the time limit , bearing in mind that section CARDINAL(CARDINAL ) of the DATE Act gave a general right to bail except in certain specified circumstances ( Schedule QUANTITY ) . Furthermore the accused , if remanded in custody , had to be brought again before ORG to enable his case to be reviewed at regular intervals , as the general rule is that a ORG may not remand a person for a period exceeding CARDINAL DATE ( section CARDINAL(CARDINAL ) of LAW ) . His detention was thus subject to judicial control in ORG throughout the period while he is in the custody of that court . Decisions of ORG were amenable to judicial review and if that court decided to extend a custody time limit the accused could appeal against that decision to ORG ( section CARDINAL ) of the DATE Act ) . He continued :

“ The effect of these provisions can , I think , be summarised in this way . A person can only be detained in the custody of a ORG while awaiting the completion of a preliminary stage of the proceedings under a procedure which has been laid down by statute , and the effect of Regulation CARDINAL of LAW is that any such detention is subject to strictly defined custody time limits . As to the complaint that this procedure is not precise or accessible because of the possibility of the substitution of fresh custody time limits , I would reject it . The provisions of LAW DATE and of LAW , as amended , deal with the procedure for remands in custody in considerable detail with a view to ensuring that every situation is provided for . It is a procedure which is prescribed by law . Detention under this procedure is lawful under domestic law , and it complies with the general requirements of the Convention . If a fresh custody time limit is to be substituted , the procedure under which this is to be done is laid down by statute and the regulation defines the length of the substituted time limit . ”

However , he found more substantial the applicant ’s complaint that the procedure was open to abuse as a result of arbitrary decisions of the prosecution : Regulation CARDINAL(CARDINAL ) of the DATE Regulation was vulnerable to abuse if it was used for improper purposes . But this , Lord Hope of PERSON considered , was a matter which was subject to judicial control by the justices or the stipendiary magistrates who could find that the new charge was simply a reproduction of the old charge with amendments which were minor or unimportant ( and , on this ground , refuse to accept that the new charge gave rise to a fresh custody time - limit ) or who could refuse to inquire into the information relating to the new charge on the basis that to do so would be an abuse of the process of the court .

As to what constituted an abuse of process in this context he considered that the essence of abuse of process in criminal proceedings was that the prosecution had “ sought to take advantage of a procedural rule for a purpose which can be described as improper or as arbitrary ” . Difficulty had arisen because of the suggestion in previous case - law that a complaint of abuse of process had to contain an allegation of bad faith . Having reviewed the relevant authorities , he found that :

“ I do not think that it can be doubted that , where dishonesty or mala fides can be established , that will be sufficient to show that there has been an abuse of process . But the concept of abuse of process is not to be confined to cases where there is proof of conscious dishonesty or of an improper motive of that kind . To the extent that the authorities to which I have referred may be taken as indicating the contrary , I would be inclined not to follow them . It seems to me that a broader and simpler test is , in this context , more appropriate . That would be more in keeping with the purpose of LAW , which is to protect the individual from arbitrariness when he is deprived of his liberty .

The true question , as PERSON indicated in R v. PERSON and ORG , ORG DATE ) CARDINAL JP CARDINAL , is whether the new charge has been brought solely for the purpose of avoiding a custody time limit . The issue can best be tested by requiring the prosecutor to demonstrate why , on the facts of the case , the bringing of the new charge is necessary . If the necessity of bringing the new charge can be demonstrated , the substitution of a new custody time limit will follow according to the rules which regulation CARDINAL ) has laid down . But if the prosecutor is unable to satisfy this test , it will be open to the court to infer that there is an abuse of process because the charge has been brought solely for the arbitrary and improper purpose of substituting a new custody time limit . ”

Lord PERSON also found that LAW allowed the substitution of a new time - limit and , further , that that was not incompatible with LAW :

“ The regulation is clear , precise and accessible . There are safeguards for the accused in the recognition by both parties that the court can intervene in the event of the prosecution acting in a way which would constitute an abuse of process . The regulation prescribes relatively short periods for the completion of the relevant stage of the proceedings and the court has a discretion whether or not an extension to the period is or is not to be allowed . Moreover the accused has remedies in law , including that of judicial review . Finally the whole scheme of the regulation has to be seen in the context of LAW DATE which gives , subject to certain exceptions , a general right to bail . ”

Lord PERSON of GPE dissented . He considered that the substitution of a manslaughter charge , already implicit in the murder charge , allowing the extension of the time - limit was an absurd result which could not have been intended by parliament . The power to grant bail did not address this absurdity since the individual had lost the benefit entirely of fixed time - limits extendable in limited circumstances for which parliament had provided by way of the DATE Act . The ORG ’s ability to prevent an abuse of process did not provide an answer since the prosecution had nonetheless exercised its powers and discharged its responsibilities “ properly and conscientiously ” .

Lord ORG also dissented finding that , where the new charge was based on the facts on which the original charge was based and was simply a lesser charge than that originally preferred , the proposition that the preferment of the new charge attracts a new custody time - limit defeated legislative intention .

“ In the present case the prosecution did not act with all due diligence and expedition . [ ORG ] so found and refused the application for an extension . It has not been suggested that [ it ] was in error . And yet , by introducing the manslaughter charge on DATE of expiry of the original custody time limit , the prosecution procured a further DATE during which the appellant could be kept in custody . It is , of course , true that it was open to the appellant on DATE to make an application for bail , and indeed he did so . But the new custody time limit defeated his absolute right to the grant of bail under section ORG ) of LAW DATE and his bail application was , in the event , refused .

If the committal hearing had taken place on DATE , as it would have done if the prosecution had not failed to act with all due diligence and expedition , the prosecution could at the same time have substituted the manslaughter charge for the murder charge and the appellant would have been committed to ORG for trial on the manslaughter charge . If the proceedings had taken that course , the period during which he would have been in custody before the committal would not have exceeded the original DATE .

On this appeal , the critical question for your Lordships , in my opinion , is whether there is a permissible application of LAW and regulation CARDINAL of GPE that would prevent , in a case such as this , the substituted charge from attracting a fresh DATE custody time limit . There is no doubt , I believe , that if that result can be reached it ought to be reached . ”

His conclusion was fortified by the impact of the requirement to interpret the applicable law compatibly with LAW . A construction and application of section CARDINAL(CARDINAL ) of LAW ) of GPE that enabled the prosecution , by preferring a new charge , to withhold from the accused the release from custody to which he would otherwise have been entitled , in a case where there were no new facts and the new charge was and always had been comprehended within the original charge , would subject the accused to arbitrariness :

“ In my opinion , it is open to your Lordships to rule that if an accused , having appeared or been brought before a GPE court on an information charging him with an offence , is then charged with a new offence of which he might , if tried on the original offence , have been convicted ( see section CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) , LAW DATE ) , a new custody time limit will not be attracted by the new offence and the accused ’s ‘ first appearance’ in relation to the new offence will be the date on which he first appeared or was brought before the GPE court on the information or charge relating to the original offence .

If the addition , or substitution , of the new offence has the consequence that the prosecution is not ready to proceed with the committal hearing within the original DATE custody time limit , it is always open to the prosecution to apply for an extension . Whether the prosecution would obtain an extension would depend on their showing they had acted “ with all due diligence and expedition ” . The end result would thus be in accordance with the legislative intention . ”

Having so concluded , Lord ORG provided his view on the meaning of “ abuse of process ” :

“ In my opinion , the requirement of dishonesty or mala fides distracts attention from the true requirements if an allegation of abuse of process is to be made out . The concept of abuse of process is no different in criminal cases from the like concept in civil cases . It involves a use of court process for a purpose other than that for which the purpose in question was intended . It is in that sense that one may speak of some procedural step being taken for an improper purpose and , therefore , constituting an abuse of process . The procedural step will often be accompanied by bad faith or dishonesty — in that a legitimate purpose , not being the true purpose , may be put forward as the true purpose . But bad faith or dishonesty are not essential . What is essential is that court process has been used for some ulterior purpose .

There will be difficulty where the purpose is mixed . The present case may well be an example . There was every reason , it being clear that the known facts did not support a murder charge but only manslaughter , for the withdrawal of the former and the substitution of the latter as soon as practicable . But the timing of the substitution suggests very strongly , to my mind , that it was done in order to forestall the automatic release of the appellant from custody . There was no evidence at all from the prosecution as to its reasons for formally substituting manslaughter for murder on DATE . The prosecution could simply have informed the defence that the murder charge would not be proceeded with and that they would be seeking a committal on manslaughter . In my opinion , however , if a step in litigation is taken for a legitimate reason , whether or not it is also taken for an illegitimate one , the step can not be categorised as an abuse of process . The legitimate reason must , of course , be more than merely makeweight or trivial . If abuse of process can be shown , the procedural step taken should , strictly , be regarded as a nullity . ... It is , in my respectful opinion , unanswerable and obviously right . If a new charge is preferred , not with any genuine intention that the accused should be tried on that charge , but simply in order to attract a new custody time limit , the preferring of the new charge is an abuse of process and the new charge should be struck out as soon as that has become apparent .

If there is a genuine intention that the new charge should be proceeded with to trial and it is simply the timing of the new charge that appears to be motivated by an intention to avoid the consequences of the expiry of the original custody time limit , the court can not , in my opinion , strike out the new charge as an abuse of process . But the circumstances in which the substitution of the new charge took place can , and should , in my opinion , be taken into account in considering whether the accused should be released on bail .

If I am right in the present case that the substituted charge of manslaughter should not have been treated as giving rise to a fresh custody time limit , the abuse of process point does not arise . If I am wrong , however , and I understand a majority of your Lordships to take a different view on that point , this was not a case in which the manslaughter charge could have been set aside on abuse of process grounds . However , it was a case in which , on the bail application made to [ ORG ] , the circumstances in which the substituted charge was preferred should have been taken into account . The fact that the prosecution had failed to act with all due diligence and expedition was relevant . So was the fact that there was nothing new which explained why the substitution was being made when it was made . The judge should , in my view , have inferred that a substantial reason for the change was that the prosecution wanted to avoid the custody time limit consequences of their own dilatoriness . A decision to award bail in those circumstances would have reflected ORG ’s intention in introducing the custody time limit statutory provisions . ”

Section CARDINAL of the CARDINAL Act as amended provided , in so far as relevant , as follows :

“ ( CARDINAL ) A person to whom this section applies shall be granted bail except as provided in Schedule CARDINAL to this Act .

( CARDINAL) This section is subject to section CARDINAL of ORG and LAW DATE ( exclusion of bail in cases of homicide and rape ) ;

( CARDINALA ) Where a custody time - limit has expired this section shall have effect as if , in subsection ( CARDINAL ) , the words “ except as provided in Schedule CARDINAL to this Act ” were omitted . ”

Paragraph CARDINAL of Schedule CARDINAL provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant , if released on bail , would fail to surrender to custody , commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice , whether in relation to himself or any other person .

Under paragraph CARDINAL of Schedule CARDINAL to the CARDINAL Act , in taking the above decision , the court was to have regard to such of the following considerations , as well as to any other considerations , as appeared to that court to be relevant :

– the nature and seriousness of the offence or default ( and the probable method of dealing with the defendant for it ) ;

– the character , antecedents , associations and community ties of the defendant ;

– the defendant ’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings ; and

– except in the case of a defendant whose case was adjourned for inquiries or a report , the strength of the evidence of his having committed the offence or having defaulted .

According to paragraph CARDINALA of Schedule CARDINAL to LAW , if a defendant ( who had been charged with murder , manslaughter , rape , attempted murder or attempted rape ) was granted bail and representations had been made as regards the matters mentioned in paragraph CARDINAL of Schedule CARDINAL , the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings .

LAW DATE made certain additions to Schedule CARDINAL to the CARDINAL Act for the purpose of ensuring that accused persons would have CARDINAL bail applications as of right , the second application being a de novo consideration of bail . Subsequently , an accused can make a further bail request if there had been a “ change in circumstances ” .

Section CARDINAL of the DATE Act gave the Secretary of ORG power to set time limits with respect to the preliminary stages of proceedings for an offence . Subsection ( CARDINAL ) of that section provides :

“ The Secretary of ORG may by regulations make provision , with respect to any specified preliminary stage of proceedings for an offence , as to the maximum period -

( a ) to be allowed to the prosecution to complete that stage ;

( b ) during which the accused may , while awaiting completion of that stage , be -

( i ) in the custody of a GPE court ; or

( ii ) in the custody of ORG . ”

Custody time - limits in ORG are governed by LAW which , in so far as relevant , provides :

“ ( CARDINAL ) ... the maximum period during which a person accused of an indictable offence other than treason may be in the custody of a GPE court in relation to that offence while awaiting completion of any preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions .

( CARDINAL ) Except as provided in paragraph ( CARDINAL ) below , in the case of an offence triable either way the maximum period of custody between the accused ’s first appearance and the start of summary trial or , as the case may be , the time when the court decides whether or not to commit the accused to ORG for trial shall be DATE ...

( CARDINAL ) In the case of an offence triable either way if , before the expiry of DATE following DATE of the accused ’s first appearance , the court decides to proceed to summary trial in pursuance of sections DATE of the [ GPE Courts Act DATE ] the maximum period of custody between the accused ’s first appearance and the start of the summary trial shall be DATE .

( CARDINAL ) In the case of an offence triable on indictment exclusively the maximum period of custody between the accused ’s first appearance and the time when the court decides whether or not to commit the accused to ORG for trial , shall be DATE ...

( CARDINAL ) The foregoing provisions of this regulation shall have effect as if any reference therein to the time when the court decides whether or not to commit the accused to ORG for trial were a reference -

( a ) where a court proceeds to inquire into an information as examining justices in pursuance of section DATE ) of LAW , to the time when it begins to hear evidence for the prosecution at the inquiry ... ”

“ ( CARDINAL ) Where -

( a ) a person accused of an indictable offence other than treason is committed to ORG for trial ; or

( b ) a bill of indictment is preferred against a person under LAW ) of ORG ( Miscellaneous Provisions ) Act DATE ,

the maximum period during which he may be in the custody of ORG in relation to that offence , or any other offence included in the indictment preferred against him , while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in these provisions .

( CARDINAL ) The maximum period of custody -

( a ) NORP between the time when the accused is committed for trial and the start of the trial ; or

( b ) where a bill of indictment is preferred against him under the said section CARDINAL ) , between the preferment of the bill and the start of the trial ,

shall , subject to the following provisions of this Regulation , be DATE .

( CARDINAL ) Where , following a committal for trial , the bill of indictment preferred against the accused ( not being a bill preferred under the said section CARDINAL ) ) contains a count charging an offence for which he was committed for trial at that committal together with a count charging an offence for which he was committed for trial on a different occasion , paragraph ( CARDINAL ) above applies in relation to each offence separately .

( CARDINAL ) Where , following a committal for trial , the bill of indictment preferred against the accused ( not being a bill preferred under the said section CARDINAL ) ) contains a count charging an offence for which he was not committed for trial , the maximum period of custody -

( a ) NORP between the preferment of the bill and the start of the trial , or

( b ) if the count was added to the bill after its preferment , between that addition and the start of the trial ,

shall be DATE less any period , or the aggregate of any periods , during which he has , since the committal been in the custody of ORG in relation to an offence for which he was committed for trial . ”

In the case of NORP v. ORG , Ex parte PERSON ( [ DATE ] CARDINAL W.L.R. CARDINAL ) Lord Chief Justice PERSON outlined the CARDINAL objectives of the DATE Act and LAW : to ensure that the period for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible ; to oblige the prosecution to prepare cases for trial with all due diligence and expedition ; and to invest the court with a power and duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in Bad Goisern . She is represented before the ORG by PERSON PERSON , a lawyer practising in PERSON .

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

The applicant ’s husband ran a tanning factory in GPE .

In DATE ORG instituted criminal proceedings against the applicant her husband and CARDINAL other accused . While the others were suspected of intentionally causing damage to the environment and of continuous aggravated fraud ( schwerer gewerbsmässiger FAC ) , the applicant was only suspected of the latter offence .

On DATE the court carried out a judicial inspection ( ORG ) at the factory , and on DATE the investigating judge questioned the applicant as a suspect . During the preliminary proceedings CARDINAL witnesses were heard and CARDINAL expert opinions on environmental matters were obtained .

On DATE the investigating judge concluded the preliminary investigations and transmitted the file to ORG .

On DATE ORG preferred the indictment against the applicant , her husband and the other CARDINAL accused .

On DATE between DATE and DATE ORG held trial hearings . The proceedings against CARDINAL of the accused were continued separately . On the last - mentioned date ORG convicted the applicant ’s husband and CARDINAL other accused of continuous aggravated fraud but acquitted the applicant .

On DATE the written version of the court ’s judgment was served upon the applicant .

Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .

" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert ’s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .

ORG ( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .

ORG ( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . "


Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in DATE and is at present detained in FAC , GPE .

In the course of criminal proceedings concerning an arms trafficking charge , the PERSON preliminary investigations judge set down the preliminary hearing for DATE .

On DATE he ordered the notice of the date of the hearing , translated into NORP and accompanied by an invitation to appoint a legal representative , to be served by post on the accused , a NORP national living in GPE named ORG , who was born in GPE on DATE . The reply slip acknowledging receipt of the notice reached ORG registry bearing a signature which , according to the applicant , was not his . He asserted that there was a difference between that signature and the one in his passport . Moreover , the forename of the signatory was “ Thamas ” and not “ PERSON ” .

As the defendant did not appear at the preliminary hearing , he was declared to be wilfully seeking to evade trial ( contumace ) and the court appointed a lawyer , PERSON , to assist him . From that point on , all notifications of procedural steps were served on PERSON

PERSON did not plead the nullity of the notice of the date of the preliminary hearing . An order was then made committing Thamas Somogyi for trial .

In a judgment of DATE , ORG sentenced the accused to DATE imprisonment and a fine of MONEY ( MONEY ) .

NORP That decision was grounded on statements made by certain persons facing charges in related proceedings , particularly a PERSON and the PERSON brothers , corroborated by other evidence . The text of the judgment did not indicate whether the persons in question had recognised the applicant on a photograph or if they had identified him in their statements purely on the basis of his name or personal information they had about him . ORG merely said that the applicant had been “ recognised and identified ” . It further observed that , in view of the gravity of the offences he was charged with and the fact that he had constantly refused to give his version of the facts , he could not be granted the benefit of any extenuating circumstance .

The judgment of DATE was served on PERSON

On DATE ORG , having noted that the judgment of DATE had become final , ordered the arrest of Mr Thamas Somogyi .

On DATE the NORP police arrested the applicant ( PERSON , born in GPE on DATE ) and notified the NORP authorities .

The NORP authorities opened an investigation which led to the finding that the person convicted on DATE was in fact the applicant .

In a decision of CARDINAL DATE , ORG ordered that the judgment of DATE be rectified by insertion of the applicant 's forename and his date and place of birth in place of the information originally recorded . That decision was served on PERSON

The applicant was then extradited from GPE to GPE , where he was deprived of his liberty in execution of the judgment of DATE .

On a date which has not been specified he applied to ORG under LAW ( “ the ORG ” ) , asking it to reopen the time allowed for an appeal ( istanza di rimessione in termini ) . He contended that the judgment of DATE was invalid because the summons was null and void , submitting the following arguments :

( a ) the identity of the person convicted had not been reliably established , so that the procedure for rectification of an error ought not to have been followed ;

( b ) he had not been aware of the proceedings against him , and the signature on the envelope containing the notice of the date of the preliminary hearing was not his . In that connection he said that if necessary a handwriting expert should be asked to determine whether the signature was authentic and that if he had to do so he would lodge a complaint alleging forgery ( querela di falso ) ;

( c ) the notice concerned had not been properly served since the form of service did not comply with the provisions of the NORP - Hungarian agreement signed on DATE ( and ratified by the NORP parliament in PERSON no . CARDINAL of DATE ) , which required all judicial communications from CARDINAL of the CARDINAL signatory countries addressed to individuals in the other country to take the form of a request for judicial assistance . The applicant further asserted that the form of service of the notice in question had in any case been incompatible with the relevant provisions of the NORP legislation concerning judicial communications by post .

In a decision of DATE , ORG refused the applicant 's request .

It observed in the first place that the judge responsible for the execution of sentences could not look into grounds for annulment arising out of the proceedings and concerning the merits of the charges . The defects complained of had in any case been cured ( sanate ) when the judgment of DATE became final .

Secondly , the identity of the person convicted had been established through an investigation conducted by the PERSON prefecture with the assistance of the GPE branch of ORG . Moreover , a mere inaccuracy concerning a defendant 's date of birth did not constitute a ground for annulment of a judgment , and could properly be corrected via the rectification procedure .

Lastly , according to the case - law of ORG , a request to reopen the time allowed for an appeal was admissible only where a defendant alleged that he had been prevented from finding out about his conviction by circumstances beyond his control . It would be inadmissible , however , if he pleaded that service of a notice was null and void . In such a case a person convicted at first instance could lodge an appeal out of time , arguing in effect that the time allowed for an appeal had not begun to run .

On DATE the applicant appealed to ORG against the judgment of DATE , submitting that as it had been based on invalid procedural steps it could not have become final . He also repeated his request for a report by a handwriting expert and his statement concerning the possibility of lodging a complaint of forgery .

In a judgment of CARDINAL DATE , deposited with the registry on DATE , ORG declared the applicant 's appeal inadmissible . It observed in particular that the evidence against the applicant had been corroborated by CARDINAL persons charged in related proceedings , who had stated that the weapons in question , which had been brought in from GPE and then used to commit an armed robbery , a murder and an attempted murder , had been bought at the applicant 's house . He had then taken to GPE a ORG car which CARDINAL of the co - defendants had sold him . ORG had correctly identified the defendant as PERSON , a NORP national living at FAC , Szigethalom , previously convicted of rape , armed robbery and acts of vandalism . Moreover , on DATE , NORP ORG had reported that the applicant was the son of a woman named PERSON ( as his lawyer had confirmed ) , that he had been born on DATE in GPE and that he lived at “ CARDINAL ... Erdo Str . , GPE / GPE ” . His address had also been confirmed by a co - defendant . In those circumstances , ORG ruled that there was no doubt that the applicant was indeed the person sought by the NORP authorities .

ORG went on to note that notification of the charges had been served on the applicant . An acknowledgment - of - receipt slip dated DATE and apparently signed by the addressee proved that this information had been received . The address at which the notice had been served was in most respects correct , the only mistakes being that an extra “ h ” had been added to “ Szigethalom ” ( making “ LOC ” ) and the accent had been missed off the place name Ërdo ( making LOC ) . It was therefore not necessary to compare the applicant 's signatures on his passport and certain company documents with the one on the return slip acknowledging receipt .

As regards the applicant 's argument that the terms of the NORP agreement had not been complied with , ORG observed that notification had been properly served on the applicant in accordance with the relevant domestic provisions , since the assistance between GPE provided for in the agreement was mandatory only if one of the High Contracting Parties requested it . Where , as in the present case , no explicit request to that effect had been made , domestic law had to be applied . In addition , although it was true that under NORP legislation registered letters could be delivered only to persons who had first been authorised and designated , it was obvious that those rules applied only where , unlike the position in the applicant 's case , the person receiving the letter was not the addressee .

The Court of Appeal therefore ruled that , contrary to the applicant 's submissions , the first - instance judgment was valid . It followed that the defendant 's appeal was out of time , and therefore inadmissible pursuant to LAW ORG .

On DATE the applicant appealed on points of law . He repeated his request for a report by a handwriting expert and again stated that he was minded to lodge a complaint of forgery .

In a judgment of DATE , deposited with the registry on DATE , ORG dismissed the applicant 's appeal , holding that the reasons given by ORG for all its disputed rulings had been logical and correct . It observed in particular that , in spite of minor clerical errors in the address , the notice sent by the PERSON preliminary investigations judge had obviously reached the person it had been sent to . There was no evidence that it had been received by someone of the same name as the applicant living at a similar or nearly identical address .

On DATE the applicant asked for a retrial , alleging that certain new information showed that he should have been acquitted . It was submitted that a NORP journalist and writer , PERSON , had informed the applicant 's lawyer that during a television programme CARDINAL co - defendants had made statements establishing his client 's innocence . In addition , PERSON had asserted that in his opinion the NORP and NORP secret services had intervened in the applicant 's case and that a Colonel PERSON , employed in ORG , knew that the convicted man was innocent .

In a decision of DATE , ORG declared the application inadmissible . It pointed out that , according to the case - law of ORG , statements by co - defendants did not justify reopening a trial . Moreover , the evidence of the persons concerned had already been taken by the lower courts . Furthermore , the opinions expressed by PERSON about the applicant 's innocence were completely subjective and unsubstantiated by any evidence .

According to the information supplied by the ORG , identification of the applicant as an arms trafficker was based on the following evidence :

– the record of an interview with PERSON on DATE during which she declared that a PERSON wished to participate in the criminal activities of the PERSON brothers and that he had supplied guns to them ;

– a handwritten note from PERSON giving the applicant 's name and address ;

– a letter sent by CARDINAL of the PERSON brothers to PERSON and received by DATE at the applicant 's address ;

– a receipt for MONEY , given by Mr PERSON to PERSON ;

– a television interview obtained by an NORP journalist on DATE at the applicant 's home , during which the applicant showed photographs of PERSON and one of the PERSON brothers ;

– the fact that PERSON had recognised the applicant 's face in the video recording of the interview ; and

– the fact that the applicant 's identity had been checked by the NORP and NORP police at the time of his extradition , on the basis of a photograph taken from the interview broadcast on DATE .

The relevant passages of LAW and CARDINAL of LAW ( “ the ORG ” ) provide :

“ In the event of conviction in absentia ... , the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no knowledge [ of it ] ... without any negligence on his part or where , in the case of a conviction in absentia having been served ... on his lawyer ... , he can establish that he did not deliberately refuse to take cognisance of the procedural steps .

A request for the reopening of the time allowed for appeal must be lodged within DATE of the date ... on which the defendant learned [ of the judgment ] , failing which it shall be declared inadmissible . ”

Article CARDINAL of the ORG provides :

“ Rectification of judgments and decisions affected by errors or omissions which do not entail their nullity , and which may be corrected without requiring a substantial redrafting of the text , shall be ordered , where necessary of his or her own motion , by the judge who gave the decision in question ... ”

Article CARDINAL of the ORG indicates what elements a judgment must include . ORG - paragraph ( b ) mentions , among other details , the defendant 's particulars or other information by which he can be identified . LAW ORG provides that , where CARDINAL of the elements mentioned in Article CARDINAL is missing or incomplete , the judgment must be rectified in accordance with LAW , and that an order to that effect may be made by the judge even of his or her own motion .

Article CARDINAL § CARDINAL of the ORG also provides that a summons must include the applicant 's particulars or other information by which he can be identified . Paragraph CARDINAL adds that the decision in question is null and void if the defendant has not been reliably identified .


Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion);Violation of P1-1;Just satisfaction reserved

I. Circumstances of the case

The applicants , CARDINAL sisters and a brother , own a farmhouse and adjoining land , which they use for agricultural purposes .

On DATE , as part of the implementation of the general development plan adopted pursuant to Law no . CARDINAL/CARDINAL , GPE ( " the Municipality " ) issued an order , under an expedited procedure , for the possession of the applicants ' land , which was located in a zone intended for the construction of low - cost and social housing ( " edilizia economica e popolare " ) .

On DATE the GPE took physical possession of the land , aided by the police . On DATE ORG issued an expropriation order .

From the outset the applicants challenged the lawfulness of the measures taken by the authorities ; they brought several actions in the administrative courts and in the ordinary civil courts .

A. Action for possession in the ordinary civil courts

On DATE they applied to ORG ( pretore ) seeking the restitution of their land on the ground that the order for possession under the expedited procedure of CARDINAL DATE had been executed after the expiry of the statutory time - limit ( DATE ) .

By an interim decision of DATE , the ORG found for the applicants . GPE did not comply with the decision .

On DATE the ORG reversed its earlier interim decision because in the meantime the expropriation order of DATE ( see paragraph CARDINAL above ) had legalised the occupation of the land . It ruled nevertheless that the taking of possession of the land on DATE had been unlawful and amounted to an act of theft . It ordered the Municipality to pay compensation for the damage sustained by the applicants on this account .

GPE contested its liability to pay compensation and , on DATE , appealed to ORG , which , on DATE , upheld the impugned decision . The text of the judgment was deposited in the registry on CARDINAL DATE .

In the meantime , on DATE , the CARDINAL cooperatives responsible for carrying out the building work ( see paragraph CARDINAL below ) had brought an action against the applicants seeking compensation for the damage deriving from the delay to the property development scheme caused by the proceedings brought by the applicants .

B. Proceedings on the merits in the administrative courts

By a writ served on DATE , the applicants instituted proceedings in ORG ( " the ORG " ) seeking judicial review of the expedited order for possession of CARDINAL DATE .

On DATE they filed a new action contesting the occupation of the land and on DATE , in the same court , they challenged the expropriation order of CARDINAL DATE .

Following the joinder of these different proceedings , the ORG quashed , on DATE , the various administrative measures - including the expropriation order - , but found that it lacked jurisdiction to rule on the lawfulness of the taking of possession of the applicants ' land on DATE ; it took the view that this question was a matter for the ordinary courts . The text of its decision was deposited in the registry on DATE .

The LOC appealed to the PERSON , which , in a judgment of CARDINAL DATE , deposited in the registry on CARDINAL DATE , upheld the ORG 's decision .

C. Enforcement proceedings

In the administrative courts

As the Municipality failed to comply with the latter decision , the applicants instituted proceedings in the Consiglio di Stato .

On DATE the Consiglio di Stato found that it lacked jurisdiction and remitted the case to ORG .

On DATE the applicants applied to the ORG , which , on DATE , found partly in their favour , holding in substance that the annulment by the PERSON of the contested expropriation measures had the effect of imposing a duty on the GPE to return immediately the part of the land that it had occupied on which no buildings had been erected , namely QUANTITY . It accordingly ordered that the land in question be returned

to the applicants within DATE . In respect of the remaining parcels of land , on which residential accommodation had been built in the meantime , the ORG held that it had no jurisdiction to order enforcement , because even before the annulment of the expropriation , the GPE had transferred the land in question to CARDINAL building ORG . As a result physical possession of the property had passed to the members of the CARDINAL cooperatives . As the latter were private citizens , neither the GPE nor the ORG was empowered to make any order whatsoever in regard to enforcement . It referred the applicants to the ordinary courts .

This decision was deposited in the registry on DATE ; it was not complied with .

In the ordinary courts

On DATE the applicants served notice on the Municipality calling on it to comply with the decision of ORG of DATE , upheld by the PERSON on DATE .

By a writ served on CARDINAL DATE , the GPE brought proceedings against the applicants in the GPE ORG seeking a declaration that the applicants ' notice to comply was invalid or inoperative because the judgment in question did not constitute a proper basis for initiating enforcement proceedings .

The applicants filed a cross - action seeking , in addition to the restitution of their land , an order from ORG for the demolition of the buildings constructed on part of it and the erection of a fence . They also claimed compensation for the damage sustained .

At the hearing on CARDINAL DATE judgment was reserved . On CARDINAL DATE ORG declared the notice served on the Municipality invalid on the ground that although the ORG judgment had quashed the measures adopted in connection with the expropriation , it was not automatically enforceable . At the same time the court partly allowed the applicants ' cross - action in so far as it related to compensation for damage and the restitution of the land .

By a writ served on CARDINAL DATE , the GPE appealed .

On DATE judgment was reserved . On DATE ORG partly set aside the impugned decision pursuant to LAW no . CARDINAL of CARDINAL DATE ( " the DATE Law " - the socalled " PERSON " ) . This law , which came into force on DATE , gave legislative force to a principle laid down by ORG ( in plenary session ) in its judgment no . CARDINAL of DATE , namely that property on which public work had been carried out making it impossible to restore it to its owner was to be the subject of compulsory transfer to the public authorities . In such circumstances the person concerned was entitled to full compensation .

Thus the appeal court dismissed the applicants ' claim for the restitution of the land . However , it confirmed their right to compensation for the damage sustained . The text of its judgment was deposited in the registry on DATE .

At a date that has not been specified , the applicants appealed on points of law , challenging , among other things , the retrospective application of the DATE Law . On DATE ORG adjourned the hearing to a later date .

In a judgment of CARDINAL DATE , deposited in the registry on DATE , ORG dismissed the appeal on the ground that the appeal court had correctly applied the DATE Law in the case before it because the applicants had not yet obtained a final decision ordering GPE to return the land which had been built on .

In addition , on DATE , in connection with the proceedings instituted by the ORG in DATE ( see paragraph CARDINAL above ) ORG raised , on the applicants ' motion , an objection based on the unconstitutional nature of section CARDINAL of the DATE Law . This objection was dismissed by ORG on DATE ( judgment no . CARDINAL - see paragraph CARDINAL below ) .

On DATE ORG dismissed the plaintiffs ' claims and held that the GPE should compensate the applicants for the damage sustained , but that this issue should be the subject of separate proceedings .

On DATE the applicants issued a writ against the ORG and GPE in FAC for a decision fixing the amount to be reimbursed to them .

On DATE ORG , finding that the GPE alone was liable for the occupation and the resulting damage , awarded the applicants MONEY less the MONEY ( reassessed at CARDINAL to take account of monetary depreciation ) paid by the defendant as an advance in DATE . They were also awarded MONEY for lawyers ' fees and expenses . The judgment was deposited in the registry on CARDINAL DATE . It was declared enforceable on DATE and was served on GPE DATE .

On DATE ORG decided that the sums in question should be paid to the applicants . The first sum plus statutory interest up to the probable date of payment ( DATE ) totalled MONEY .

On DATE the applicants served a notice to comply on the Municipality , which , on the following DATE paid them MONEY .

On DATE , they issued a writ under LAW requiring the LOC and its bank to appear on DATE before the enforcement judge so that he could order the attachment of funds belonging to the Municipality with a view to securing payment of the outstanding amount . On DATE a bailiff attached MONEY .

II . Relevant domestic law

A. Legislative provisions

Section CARDINAL , paragraph CARDINAL , of PERSON no . CARDINAL of CARDINAL DATE provides :

" The occupation of land under the expedited procedure with a view to its expropriation shall be authorised by the ORG . Such an order shall lapse if possession of the land is not taken within DATE on which it was issued . "

Section CARDINAL of Law no . CARDINAL of CARDINAL DATE states :

" Any person who owns land which is used for the construction of public buildings or social housing shall be entitled to compensation for damage sustained where the expropriation has been declared unlawful by a court decision which has become final , but such person may not claim restitution of his property .

Further , such a person is entitled , in addition to compensation for damage , to sums payable in respect of monetary depreciation and to any other sums mentioned in Article CARDINAL § CARDINAL of LAW , such amounts being calculated from the date of the unlawful taking of possession . "

Article CARDINAL § CARDINAL of the Civil Code provides :

" Any creditor who establishes that he has suffered greater loss is entitled to be compensated therefor . There is no such entitlement in cases where it has been agreed that interest would be paid in case of delay . "

Article CARDINAL of the Code of Civil Procedure is worded as follows :

" The attachment of a debtor 's funds held by third parties ... shall be effected by a writ served in person on the third party and the debtor ... "

PERSON - law

Interpreting section CARDINAL of the DATE Law , ORG held in its judgment ( no . CARDINAL ) of CARDINAL DATE :

" In the impugned provision , the legislature has given preference , as between the owner 's interest in obtaining restitution of his unlawfully - expropriated land , and the public interest - in this case the allocation of such land for building public , low cost or subsidised housing - to this latter interest . "